July 2nd, 2021

July 2nd: A Day to Declare Independence (And Celebrate Juries)

John Trumbull’s famous painting of the Declaration’s presentation hangs today in the Capitol Rotunda. It is owned by the citizens of the United States.

Each year I’ve used July 2nd as jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown. It was signed two days later, and the date of signing (not voting) is memorialized on our Declaration of Independence.

John Adams thought that July 2nd was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write posts from years gone by about why the day is so important, for juries and otherwise. Here are a few of the pieces:

Power to the People (A Declaration of Independence)

Taking the Oath

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but please, please, please take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…
————
IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

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December 5th, 2019

Jury Nullification and the Trump Impeachment

We have criminal trials. We have civil trials. And we have, rarely, impeachment trials.

Today Mark Bower explores the concept of jury nullification in the context of jurors doing whatever they hell they feel like, regardless of the law. I explored jury nullification once before, albeit it briefly, many years ago.

This fuller discussion comes in the wake of news of President Trump wooing Congressmen and Senators with Camp David visits and special lunches.

———————-

A primer on jury nullification:

The United States Constitution guarantees a trial by jury to all persons accused of a crime. That jury is comprised of average citizens from all walks of life with no special training or skills to serve other than being a U.S. citizen who is at least 18 years old, residing in the judicial district for a set period of time (typically one year), being proficient in English, having no disqualifying mental or physical conditions, and (in most states) not having a pending or previous felony conviction. In fact, more than 32 million people are called for jury service every year, according to the National Center for State Courts.

Serving on a jury is a hallmark of our justice system and a cornerstone of democracy. But did you know that, unlike judges, juries historically have been able to ignore the law in order to achieve justice in individual cases that involve unjust rules or their unjust application? This is known as jury nullification. Below, you will find a discussion of jury nullification, including how it’s defined, its legality, examples, and how this applies to the impeachment of Trump.

Jury Nullification Defined:

Jury nullification might sound like a convoluted concept in an already confusing legal system, but the idea is actually quite simple. It happens when a jury returns a verdict of Not Guilty despite its belief that the defendant is guilty of the violation charged. Why would a jury do this? Don’t jurors swear an oath to uphold the law? Yes, but oftentimes it is a tool juries can use to set aside a law they believe is immoral or wrongly applied to the accused.

For example, in the 1800s the government passed stringent fugitive slave laws that compelled citizens of all states to assist law enforcement with the apprehension of suspected runaway slaves. Known as the Fugitive Slave Act of 1850, the law included large fines for anyone who aided a slave in an escape, even by simply giving the person food or shelter.

Northerners used the jury box to voice their protest by refusing to convict in these cases and thereby “nullifying” the law on moral grounds. A mirror-image may be found in the countless acquittals in the South of whites charged with lynching black men, regardless of clear guilt-in-fact. In other cases, juries nullified prohibition era laws and drug laws that they disagreed with. Put crudely but accurately, the jurors rejected the charges based on personal beliefs that the laws were wrongheaded.

Jury nullification also exists in civil cases but is relatively uncommented-on. Every trial lawyer knows that cases may be won or lost based on intangibles, such as the likeability or unlikeability of the client, that has nothing to do with the merits of the case. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification. A recent rise in hung juries is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves.

Legality of Jury Nullification:

Jury nullification is legal according to the U.S. Supreme Court, but whether or not juries may be instructed on this right is a different matter. Although the power of jury nullification exists, lawyers are generally prohibited from urging a jury to disregard the law. Although no precedent revokes the power of nullification, courts have since the 19th century tended to restrain juries from considering it, and to insist on their deference to court-given law.

The 1895 decision in Sparf v. United States written by Justice John Marshall Harlan, held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5–4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.

A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the power of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect:

“We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.”

Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:

“…by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to ensure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.”

The right to disregard the law if one disagrees with it on moral grounds, also comes from the fact that jurors cannot be punished for the verdict they render, no matter how unpopular it is to the general public or the specific judge presiding over the case. Also, defendants found not guilty, cannot be retried for the same crime, that would violate the double jeopardy concept.

Hence, once a jury finds a defendant not guilty, there is no mechanism for a prosecutor to bring the case against the same defendant again. (See: Bushel’s Case, from the 1670 trial of William Penn.)

Several cases that were speculated to be instances of jury nullification included the prosecution of Washington, D.C.’s former mayor, Marion Barry; the trial of Lorena Bobbitt; the prosecution of the police officers accused of beating Rodney King; the prosecution of two men charged with beating Reginald Denny in the resulting riots; the trial of the surviving Branch Davidian members; the trial of the Menendez brothers for the murder of their parents; and perhaps most famously, the O. J. Simpson murder trial. In the days preceding Jack Kevorkian’s trial for assisted suicide in Michigan, Kevorkian’s lawyer, Geoffrey Fieger, told the press that he would urge the jury to disregard the law. Prosecutors prevailed upon the judge to enter a pretrial order banning any mention of nullification during the trial, but Fieger’s statements had already been extensively reported in the media.

In a 1998 article, Vanderbilt University Law Professor Nancy J. King wrote that “recent Looking to the Clinton impeachment trial for guidance on the Chief Justice’s role has been unsatisfying. C.J. William Rehnquist’s low-key role is remembered mainly for two minor things: (1) His decision to adorn his black robe with glittering gold stripes – an idea lifted from Gilbert & Sullivan’s “Iolanthe;” and (2) his ruling preventing the Senators from being referred to as “jurors”. It is not likely that C.J. John Roberts will get much precedent from Rehnquist’s presiding over the Clinton impeachment.

Will the Trump Impeachment Call for Nullification?

As of this writing, the Trump defense strategy has essentially been to contend that Trump’s pressuring Ukraine to “dig up dirt” on the Bidens, while perhaps unappealing, is too minor a transgression to rise to the “high crimes and misdemeanors” standard for impeachment. So far as I know, no legal commentator has yet called this “jury nullification.”

But conceptually, this is every bit as much “jury nullification” as northern jurors refusing to convict those who helped slaves escape bondage because of their revulsion to slavery, or Southern jurors refusing to convict lynchers. And so, without say so explicitly, the G.O.P. defense strategy is to appeal to the public and Senators to embrace jury nullification and prevent impeachment and conviction.

As the Supreme Court has never rejected jury nullification but won’t allow defense attorneys to explicitly advocate that jurors substitute their personal beliefs for following the law, I expect Chief Justice Roberts will follow that path, not explicitly allowing the Senate to disregard the law while simultaneously allowing them to “vote their consciences.” That will allow the jury nullification strategy that is currently playing out in the media, to play out in the Senate without ever saying so outright.

Will the jury nullification strategy succeed? I can tell you the answer with complete certainty: Maybe. Ask me again in a year, and I will give you an even more certain answer.

* – Mark R. Bower is a former Court TV Commentator and is a board-certified medical malpractice lawyer in NYC. .

February 2nd, 2016

My Turn In the Jury Box (Kinda, sorta)

Watergate jury, by John Hart. The original hangs in my office.

I last sat jury duty almost 20 years ago. I didn’t know why I had been called since, but when the jury questionnaire came in to my house late last year and I confirmed my address, I knew it was coming.

That day was a legal trifecta of sorts for me: Not only did I get the questionnaire, but on the same day I was served with subpoena to testify in a deposition, was I had been a witness to a pedestrian knockdown, and I also settled a case during jury selection. On one day I was involved three ways with the legal system: as lawyer, witness and potential juror.

And the jury summons not only came, but I got two of them, one for my local city court and one for federal court.

Would I get a chance to send someone to visit Old Sparky after we gave him a nice, fair trial?

The city court appearance was first. There were two (civil) cases on the calendar.

I was looking forward to seeing other lawyers question me, figuring this would be great fun. You could see the scenarios, couldn’t you?:

Q: Aha! Your a plaintiff’s lawyer, so you must sympathize with those who are injured!

A: Well, I have a long history of telling people no. If you don’t say no often enough you go bankrupt. Also, I guess this would be a good time to mention I’ve had two frivolous cases against me in the last few years. And that I’m the race director for a trail race where there is a great likelihood of people getting injured (waiver/disclaimer).

What would they do with those things? Would they apply the Turkewitz Beer Test? I wanted to watch the wheels turn in the lawyers’ brains. Just for fun.

So off I went last Monday to sit, only to find that the cases had both settled. Not to worry! we were told, just come back the following Monday (yesterday) as there were two more. I was called for 10 am and was out the door by 10:30.

The second Monday came and, poof!, just like that, they were down to one case, and it too had settled. In by 10, out by 10:20, and jury duty over for the next six years.

I didn’t get to watch any reactions about what to do with me.

So, was this a waste of time? Of course not.

Because the very fact that we were sitting there forced the lawyers (or insurance carriers) to take one of two paths: ~~Shit, or get off the can~~ fish, or cut bait. There were no longer excuses for delays.

I’m certain that many walked out of that courthouse believing that their time had been wasted. But as someone who has disposed of many a case either at jury selection, or during trial (or deliberations) I tell you that the mere presence of the community sitting there in the box holding its finger of fate over the heads of the litigants, makes things happen.

And happen they did, though no on gave me the details.

By the way, I woulda’ been an awesome juror.

May 21st, 2015

Jury Selection, Brooklyn Style

Brooklyn’s county courthouse, 2008. Photo credit: me.

Two recent articles in Reason by its Editor in Chief, Matt Welch, raised issues about New York’s jury selection process and are very much worth discussing. Welch, as you’ll see, didn’t find the experience as amusing as my screenwriter-brother, or get any of the hoped-for excitement that my niece Ellen wanted, and certainly didn’t appreciate it the way I did when I sat jury duty many moons ago (and was selected).

So on to the main event: Welch. When I first read the first of his two articles in his libertarian oriented magazine, I was ready to mock, parody and lampoon his never-ending stream of whines, complaints, grumbles and gripes. That was my gut reaction, and it was going to be fun.

But there was one big point he made and one big point that he botched, and both are deserving of attention.

First, his take on the selection process: He bitched, whined, moaned and complained about the Brooklyn courthouse architecture, the dirty plaza in front, the security, and the ever-so-slow orientation and waiting to be placed in a voir dire pool to be questioned by lawyers. (How Jury Duty Almost Turned Me into an Anarchist)

When he finally gets there, he sounds like Arlo Guthrie showing up to his draft board after a long night of drinking — prepared to be injected, inspected, detected, infected, neglected and selected. In meeting the lawyers for the case, what type of mind set do you think he started with?

Is this stuff important, or just superficial belly-aching by someone looking for material to write about, as he did in his book about similar issues?

Answer: It’s important!! You don’t shoot the messenger because you don’t like the message. He made a valid point that some jurors may be poisoned by the process itself, even before actual selection started. Anyone who practices law in Brooklyn knows we need vastly more room and judges.

And court administrators should take note, to the extent that they have the capacity to actually do anything about it within the tight financial constraints that the Legislature imposes.

Subway art, Borough Hall station where the courthouses are. Photo credit: Me.

Wouldn’t everyone — jurors, lawyers, judges, clerks and officers — rather be inside that great, big, new, shiny federal courthouse down the block? You betcha. It’s vastly more civilized, and jurors don’t start the trial phase, if they get there, feeling abused. The building itself, and the federal administration of it, oozes competence and justice (much to the chagrin, likely, of criminal defendants).

And feeling abused is important, for then the aggravations and irritations of the process itself may simply confirm pre-existing biases to the detriment of one side or the other.

Confirmation bias is a huge issue to deal with in jury selection (and the issue Welch botched). Because many people instinctively look for facts to “prove” the thoughts they had before hearing evidence, or reading a news story. They want to know that their opinions were “right.” This is most commonly seen in politics, where everything on “the other side” is wrong.

Welch states that he wants to do the right thing, claiming near the outset of his piece:

Jury duty is a chance to bond with fellow citizens you might not otherwise meet, peek under the hood of our flawed judicial system, and do our small part to advance the noble democratic ideal of participatory justice.

And he also writes, in his own defense that:

…I would also say that within libertarianism there’s a broad appreciation that the civil system provides the kind of redress unavailable in places like Western Europe, for example. And at any rate, I don’t have strongly held opinions about it; my strongly held opinions are about the criminal justice system.

But when I look under the hood of his writings, in just these two pieces, I see a pre-existing proclivity, and the concern any lawyer would have for potential confirmation bias if he were to sit in judgment. Describing the case as he first hears about it in the jury selection room, he writes:

It is, to my chagrin, a civil trial, not a criminal one, involving the category of incident one might see advertised in a subway car.

Ouch. OK, he is entitled to his opinion for sure, regardless of whether I like it or not. But it’s hard to miss the underlying bias.

In his second piece, entitled How Lawyers Pre-Try Cases During Jury Selection, he tries to claim the voir dire process (and the jurors) are abused by the lawyers trying their cases in the room without a judge or evidence.

And he continues his complaints by dropping another clue as to his underlying feelings, calling plaintiff’s counsel a “Court Street Lawyer” with a link to a derisive description.

Moses with the law, at the entrance to the Brooklyn courthouse. 2008. Photo credit, me.

Now the vast majority of people will say, and likely believe, that they can sit fairly and listen to evidence, if the question is put to them directly. But this is a very superficial question, and ignores the underlying biases a juror may have. And that, in turns ignores the very legitimate concerns that such jurors will engage in confirmation bias as they listen to the evidence. This is what the trial lawyer needs to worry about, regardless of who they represent.

Welch himself knows about confirmation bias. On just the 4th page of his book The Declaration of Independents, he writes with co-author Nick Gillespie:

You may have heard of confirmation bias, whereby people tend to notice and believe whatever rumors, news stories and quasi-academic studies confirm their world view.

But seeing it in others is altogether different than seeing it in the mirror.

It was during that second piece, that he argued that the lawyers were looking to get rid of all the potential jurors with expertise. But this is not what trial lawyers do. We look to get rid of those with deep-seated biases, because we worry that such people will simply look for evidence during a trial to confirm them.

One example of what Welch thinks is an attempt to argue the case in the jury selection room and condition the jurors is the common question trial lawyers ask when talking about money and damages, “If you thought the injuries were substantial would you hesitate to bring back a substantial verdict?” But I (and so many others) ask it because I want to know about a political bias — do they have any feelings about one-size-fits-all damage caps? I would consider that information to be pretty important. So would my adversary.

And the reverse is also true when discussing the issue of damages, and is also asked: If the plaintiff shows only minimal injuries would you have any problem bringing back a minimal verdict? I’ve yet to meet a defense lawyer that is a potted plant. (The wise plaintiff’s lawyer asks both questions – asking about both the substantial and the minimal.)

Another example of bias are potential jurors who work in the medical field, sitting in a medical malpractice case. Are these people automatically excused due to their expertise?

Some would be inappropriate due to subconscious concerns about what their co-workers would say if they brought back a plaintiff’s verdict. It’s the lawyers job to ask about that bluntly and make the juror ponder it.

Yet others might acknowledge that they have seen all manner of bad things happen in a hospital. So dumping medically educated jurors or keeping them could go either way.

And more important than the medical practitioner is the parent of one. For now emotion/bias is even more likely to be a factor as the lawyers fear this juror seeing their own kid as a defendant.

Thus, Matt Welch’s two Reason articles are useful: Useful in describing the oft-times miserable experience that some jurors have, so that court administrators and legislators that hold the purse strings can address them and so that lawyers can appreciate what these potential jurors have gone through before the first questions are even asked.

But it is also useful in ways Welch might not have appreciated, as a good example of seeking out the underlying biases that potential jurors might have, and addressing head-on the concerns about them engaging in confirmation bias as they listen to the evidence.

Addendum: As I re-read this piece this morning while sitting in that same courthouse, just after publishing, I remembered I had written back in 2008 about the highly scientific method that I use for jury selection: Who Sits Jury Duty? (The Turkewitz Beer Test)

May 14th, 2014

McDonald’s Coffee Case, 20 years Later — And Why It Is Still Important

Stella Liebeck v. McDonald’s, a/k/a The McDonald’s Hot Coffee Case, continues to be in the news despite the fact it was tried 20 years ago in New Mexico. 20. Years. Ago.

It was in the news two years ago with the documentary Hot Coffee.

And it pops up this week via postings at Abnormal Use and Overlawyered, among other places, claiming there are myths that need debunking, as if 20 years of analysis wasn’t enough. Even I’m bored with the subject, and this type of case fits in my wheelhouse, and is especially important to anyone that tries cases in front of juries.

Was this a frivolous suit because hot coffee is supposed to be hot? Or was it a perfectly reasonable case of an excessively dangerous product (scalding coffee) with an inadequate warning as the jury found? Should the case be better known, and summarized, as Hot v. Scalding?

You know what? My opinion doesn’t really matter. And yet I talk about it every time I pick a jury. Every. Single. Time.

Why? Because people form opinions based on headlines they see in the papers, be they digital or paper. People don’t form opinions based on run-of-the-mill cases because those hear about them. Only the outliers make headlines (which is often compounded by lousy reporting).

And so I bring the subject up, time and again, asking how people feel about this ancient and (in)famous case. I don’t try to change their minds. I don’t try to argue that case. And that is my point.

All cases are different. We all know that intellectually, but it is the emotional part of the brain that lawyers need to worry about. No matter which side of the -v- we happen to be standing on, we want to know– we need to know — if there is some preconceived notion about the overall subject (lawyers, litigants and lawsuits) that the person might have.

If a potential juror is going to have an opinion or emotional reaction (that they will admit to) it is likely that the McDonald’s coffee case will bring it up.

I’m bored with the actual details by now, yet I talk about it all the time. And so should you if you are picking a jury.

It doesn’t matter what you think. It only matters what they think.