- 1. A Jury trial is always a crap shoot in whole or in part.
- 2. You may have liability or damages or an attractive client on your side but rarely will you have all three. How many people get to represent a Mother Teresa who slipped and fell suffering irreparable brain damage because an Exxon oil truck driver left his spigot open outside a church while sipping a beer?
- 3. No matter how much more skill and experience and finesse you have vis-a-vis your less experienced adversary a jury NEVER allows one side to get too far ahead. It’s human nature. Jurors are prone to reduce what can be called the ‘competency gap” between counsel and can be expected to level the playing field. You may be up against a rank beginner but jurors like to unconsciously compensate the less seasoned opponent neutralizing your initial advantage.
- 4. No matter how much medical evidence you show a jury there will be at least one juror who has had a similar injury and they will not hesitate in opining about it. Depending upon this know-it–all’s disposition the injuries will either be ‘life altering’ or something that the plaintiff will “have to live with’. Good luck figuring that one out in advance.
- 5. No matter how much time the trial judge affords you in voir dire you will NEVER really know what is going on in the minds of all 12 jurors nor even half of them. At best, you may have an inkling depending upon this or that volunteered comment but in truth there remains so much you will never know about each juror that to pretend otherwise is simply arrogance and foolishness- a troubling portent to be sure.
- 6. No matter how many admonitions the jury is given by the Judge and no matter how many times they promise to be “fair and impartial” and “follow the evidence” they are likely to DO THE OPPOSITE just as easily and respond EMOTIONALLY. You can count on at least a few jurors doing their own on-line research and if they are bold enough to violate this admonition they aren’t likely to be shy in “sharing” their information however circumspectly. Remember most jurors distrust the system or are simply ignorant about it and everyone likes to appear smart and no one likes to be fooled.
- 7. Consider a near absolute non- fact that is likely to loom as large as any fact in your case. “What will the Plaintiff will do with the award? The jury will be asking themselves this questions whether they vocalize it or not. If there’s alcohol/drug use or other unsavory conduct/aspects in the record say goodbye to the bonanza you were hoping for. It’s not going to happen. No juror getting $15 a day is inclined to bankroll sloth, indolence, or anti-social behavior.
- 8. Conservative counties don’t consistently act conservatively and liberal counties don’t consistently give away the store. It all depends. Settlement judges are fond of boasting that “this county is not like blab blah county”. Take such advice under advisement but also remember who and why it is being offered to you. No Judge wants you there taking up time that could have been avoided had you simply settled.
- 9. Many cases (more than there should be) turn on the likeability of the parties. This should bring you to the following inquiry: Do you like your client? You’ve dealt with your client for a year and probably two or more so you’re well served honestly asking and answering that question because odds are if you have misgivings about your client so will the jury.
- 10. Jury trials are very hard on the body and soul. Sleep is a luxury and coffee and quick meals a necessity. (Plus god knows what else). Your world gets very small when you’re in trial; nothing else really matters and that includes your children and spouse and your health. They all will have to wait until the trial is over. Its war. Your stomach churns while you’re sitting at counsel table while you pray it doesn’t make too much noise. And so my dear reader after 42 years of warring and battling and making indelicate stomach noises during trial I’d advise you avoid trials whenever possible- even though I’d be lying if I said I (and you) won’t love the excitement and stress of it all. But, after all this time the bigger question is whether the stress likes you.
