December 9th, 2013

Another Turkewitz Sits Jury Duty

Ellen decides to crop her brother out of the shot.

Another family member sits jury duty. Niece Ellen Turkewitz now joins brother Dan and Mrs. NYPILB giving their bird’s eye view of the process, which is altogether different than what we trial lawyers see.

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When I got the notice to serve jury duty a few months ago, I was really excited– As a Law and Order fan, I had visions of courthouse showdowns and action packed trials.

I woke up on Thursday morning in the midst of a pretty terrible cold. I trekked to the courthouse and found a line of 40 people deep waiting to get in… in the pouring rain. The security team working the x-ray machines were moving at a glacial speed, barking orders at those trying to pile into the building to avoid the downpour outside.

Once I was seated in the “jury duty holding pen,” I awaited instructions from the clerk monitoring the room. You think your job is a snooze? Can you imagine telling a group of frustrated, wet and cold people over and over again that they needed to sit and wait until their name was called? To be fair, the clerk did crack a few jokes attempting to make the situation a little less dull.

By far the most interesting part the experience was watching other people and their reactions to the clerks’ instructions. “New York City has no one day trials. If you get chosen, you will be on trial for more than a week. If this is a problem, go to the other courthouse to reschedule your date,” he says.

Cue groans and eye rolls. About 20 people stand up and shuffle back into the rain. “You cannot serve if you don’t speak English.” About 10 more people get up and leave ( my question? How did they understand that last sentence if they don’t speak English?)

“You cannot serve if you are a convicted felon” comes his next line. At this point everyone giggles and looks around to see who will stand. Sure enough, about 10 more people get up, including the Burberry clad girl next me. Humm… makes you wonder.

In the midst of the clerks’ instructions, people kept going up to his desk to ask him questions. I was silently sceaming at them to sit down and wait for the clerk to finish his speech– I couldn’t believe that people thought it was okay to interrupt him mid sentence to ask a personal question!

Around 10:15 the clerk received the first case. He began to call out the names of selected jurors, but mine was never called. I was bummed. I was looking forward to hearing a case and living out my Law and Order dreams. He told us to sit tight and he would let us know when the next case came in. Around 12:30, we were given a two hour lunch break and told to return at 2:15. The fun part of jury duty had begun!

When we returned from lunch, the clerk repeated his instructions to be patient and wait for the next case. Out came the books, laptops and newspapers. At 2:45 the clerk announced that there would be no more cases that day and we were free to go… until the next day. I was at a loss of what to do with myself! Who gets out of work before 3pm?!

When I woke up Friday morning with an even worse cold, my first thought was “can I call sick to jury duty? Who pays my salary if I do? Will I have to go back next month to repeat this tedious process?” I dragged myself down the court house, waited in the pouring rain (again) to go through security, and took my seat in the waiting room. The clerk told us no new cases had come in yet that day and he would update us later.

As I battled my runny nose I noticed one very important thing- There were no tissues! You would think that the city of New York could spring for some Kleenex if they were going to hold us hostage for the day. Thankfully, at 12:15 the clerk announced that NYC was so safe that there would be no more cases that day and we were free to go (for the next 6 years!).

While I was slightly disappointed that I never got to hear a case, my desire for a nap and some dayquil overpowered everything else.

Do I feel like a made a difference in the justice system? Not really. But it was an interesting two days of people watching and I have offically completed my civic duty for the next 6 years.

March 8th, 2013

Should Jurors Be Allowed to Ask Questions at Trial?

Peter DeFilippis

Out in Arizona, Jodi Arias is on trial in a high profile case in which she is charged with the murder of her lover, Travis Alexander, after a day of rough sex. He’d been, according to news accounts, “shot in the head, stabbed and slashed nearly 30 times and had his throat slit.” She claims self-defense.

But what jumped off the page for one of my brethren of the New York bar, Peter DeFilippis, is that jurors were allowed to ask questions. That isn’t something we see too often around these parts.

Without further ado, I turn my blog over to the talented DeFilippis as a guest blogger, who after 24 years of practice, has something to say on the matter….
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The jurors in the highly publicized Jodi Arias case recently submitted to the court over 100 questions for the defendant to answer even after the prosecutor spent days grilling her over every last detail in connection with her self-defense argument. Arizona is one of just three states that allow jurors to pose questions to witnesses after prosecution and defense lawyers have finished their questioning. From the perspective of someone who’s spent some time in the well of the courtroom, I wish New York judges would in the interest of justice, allow jurors to pose additional questions of the witnesses in civil cases even if one side objects to the practice.

A universally frustrating aspect to civil trials is that once jury selection concludes the lawyers can’t communicate with the jurors. Generally speaking, jurors sit quietly during the trial presentation, they are expected not to ask questions, and perceive their role during the trial presentation as receptive rather than actively inquisitorial. If counsel were to so much as say hello to the selected juror in the elevator it may land the lawyer and juror in hot water.

During the trial the silence between the attorneys and jurors can be deafening: jurors yearn to ask the lawyers questions and lawyers would love to know more about what the jurors are thinking about their cases. When we interview jurors after a case has ended they sometimes wonder why we did not ask witnesses certain questions or probe specific areas. They are surprised to learn that we are often prohibited by the rules from discussing or presenting many seemingly relevant facts or issues. For example, we cannot divulge to jurors whether or not a defendant has insurance coverage applicable to the claims of injury. Disclosure of this to the jury may potentially result in an instant mistrial.

One way to alleviate this tension is to allow jurors to pose and submit their own written questions to the judge after the attorneys have finished their direct and cross-examination questioning of a witness. This would allow attorneys to clear up any issues, misconceptions or concerns BEFORE jury deliberations begin.

There is no New York rule prohibiting this practice. Rather, the case law says it is a matter left to the discretion of the trial court. Some judges will advise at the outset if they permit jurors to take notes and/or ask questions. In my trial experience, note taking is fairly frequently allowed, however juror questions of witnesses are rarely sanctioned unless all sides consent. I have made the request on several occasions, but when defense counsel balks, judges will usually not initiate the process though they may properly do so.

If allowed at trial, essential to the process is for the judge to ask jurors if there are any questions and explain the mechanism whereby they could ask questions, i.e., whether it be during direct or cross examination or when the witness is about to leave the stand or at some other time. I think informally allowing jurors to raise their hands and orally ask questions, without judicial screening or consultation with counsels, could be highly problematic. Our high courts have held this is not the best practice. Conversely, utilizing written questions lends itself to an orderly function as opposed to a hand rising session which might invite a cacophony, confusion or other courtroom chaos. Also, forcing one side or the other to publicly object to a juror’s question would strike me as highly prejudicial.

Well thought out and manageable procedures exist and are codified in other jurisdictions, such as New Jersey, where juror questions are allowed (See, NJ R GEN APPLICATION R. 1:8-8) even if all sides do not consent. The court makes its determination after all parties have been given an opportunity to address the issue, but they need not fully consent for juror questions to be implemented. The questions are first written down by the jurors and then presented to the judge.

The judge then takes the attorneys into chambers for a conference about those questions. Argument and clarification are held beforehand between the court and attorneys outside the presence of the jurors. The judge tries to work out an agreement by the attorneys as to which questions should be asked, and whether the form of the question proposed by the jury should be altered or modified at all. If there is not agreement, the court decides the issue on its own. If allowed, the judge reads the question, in original form or as modified, to the witness. Since the judge is screening the questions, clearly improper ones are not asked. Attorneys shall then, if desired, be permitted to reopen direct and cross-examination to respond to the jurors’ questions and the witness’s answers.

I think this process insures that the jury is better informed and makes its decisions based more likely on facts gleaned from testimony under an oath than on conjecture. The individual juror is presumably happier and more satisfied if inquiries are answered via live testimony as opposed to not at all or by speculation in the deliberation room (which is frowned upon by the court). Keeping jurors interested and engaged through this active participation in the legal process is of paramount benefit to the litigants and jurists. Perhaps it might increase attentiveness and help to mitigate the tedium and boredom often complained of in connection with serving as a juror on a trial (especially a lengthy one).

Hearing from the jurors in this manner also helps the attorneys to gain some insight into the jurors’ thoughts and hints of major concerns with the case. Savvy lawyers may alter the presentation of their side based on the questions they are receiving and cover missing areas. This may also head off jury confusion which often leads to unnecessarily lengthy deliberations or inconsistent verdicts. A definite plus is the insight gained by everyone involved from learning some of what is in the jurors’ minds before they make their ultimate decision.

Based on the above points, I would urge New York State judges to consider allowing our jurors to pen and submit written questions of witnesses during civil trials, as codified in other neighboring jurisdictions. Further, they should promote this open, interesting and interactive procedure during their trials even without the consent of all sides, as defense counsel may oppose juror questions strictly as a display of caution or matter of custom. I feel increased juror participation will aid our judicial system in achieving its stated, well known, goal which is to seek to provide justice for all.

February 7th, 2013

The Wrong Lawyers for the Job? (BigLaw Trial Attorneys Get Bench Slapped) – Updated

Dow is the defendant. But if the jurors fell asleep during plaintiff’s opening, Dow will win regardless of what they did, or did not, do.

Really, you just don’t see this too often. Lawyers do get called out for incompetence sometimes by judges, but it doesn’t really happen too often right after opening statements, and with BigLaw coming in from out-of-state to play on the field.

But sometimes you just might not have the right lawyer for the job. And in the well of the courtroom, in front of the jury, the right lawyer for the job is the one that can tell a coherent story. Not put the jury to sleep.

And these guys put them to sleep. Literally. In the first inning of the game.

The playing field of this dispute is federal court in Kansas City. The issue involves, according to the Kansas City Business Journal that broke the story, alleged conspiracies to fix the prices of urethane chemical products known as polyether polyols that are used to make a variety of consumer goods.

The sides in this dispute must have felt that local attorneys didn’t know how to tell a story about price fixing, so they brought in the out-of-state big guns.

For the plaintiffs was Michael Guzman of Washington-based Kellogg Huber Hansen Todd Evans & Figel. This is an 83-attorney firm that one website comically calls a “boutique.”

The firm must be good, because, as per the firm’s website, they are absolutely awesome. The roster of attorneys:

includes former Assistant United States Attorneys, Assistants to the Solicitor General, and attorneys who have held senior positions in the White House, Federal Communications Commission, and the Department of Justice, including a former Assistant Attorney General and Counselor to the Attorney General. Almost all of our lawyers have served as law clerks to federal judges, and nearly one-third have clerked for Supreme Court justices.

Hey! I’m impressed! OK?

On the other side, for the mighty Dow Chemical was David Bernickof mighty New York-based Boies Schiller & Flexner. Are they impressive? You bet…just read their website copy:

While best known for landmark cases such as United States v. Microsoft, Bush v. Gore, and In re Vitamins, we represent some of the largest and most sophisticated organizations in the world when the results matter most. In less than a decade, we have won and saved our clients billions of dollars in trials, arbitrations, and settlements. We have been described by The Wall Street Journal as a “national litigation powerhouse” and by the National Law Journal as “unafraid to venture into controversial” and “high risk” matters.

OK, OK, you are all now just as suitably impressed as I am.

First Guzman made “a lengthy opening statement for the plaintiffs.” Then Bernick spoke for half an hour, handed it off to his colleague Hamilton Loeb of D.C. firm Paul Hastings (800+ lawyers) for another half-hour, then returned to Bernick for another 30 minutes.

Since I wasn’t in the courtroom I will defer to U.S. District Judge John Lungstrum who was, and who presumably has seen his fair share of trials. Was he as impressed with the lawyers as I was after reading their magnificent website copy? Would I be writing this piece if the jurors were enthralled with the legal skills on display?

OK Judge, take it away…and tell us how quickly the jurors lost interest in the story and fell asleep:

“Honestly, if I had to do it over again, I’d give you each half as much time as I did. I told you all again this is your case, you guys do it however you think you want to do it, but you have people at the beginning of opening statements who are taking notes, who were engaged and who were interested. About halfway through the plaintiffs’ opening statement, those people tuned out. Other people literally went to sleep for a while. I did not call them on it because that’s not evidence; it’s not the law.

Ouch. Not kind to plaintiff’s counsel at all. But don’t worry, he had words for defense counsel also:

“It’s the responsibility of counsel, if you want people to hear your opening statement, to present it to them in a way that keeps their attention. Defendants’ opening statement rambled all over the ballpark. I suspect nobody on the jury’s got any idea what they think the evidence is going to be except it’s going to be vaguely different from what the plaintiffs have in mind.

“Now I’m saying this to you all going forward, you owe to your clients and to this jury not to just do everything you possibly can do because somebody says you can, and I really regret giving you an hour and a half each for opening. … The closing arguments in this case will be considerably shorter than what I originally thought would have been the case because neither side evidenced the ability to focus themselves on what they’re supposed to be doing.”

I’m willing to bet that Kansas City has a lot of very fine trial lawyers, and I bet that many of them know how to tell a story without putting people to sleep or rambling all over the place.

I know nothing at all about this case, but this: If jurors fall asleep during plaintiff’s opening then the plaintiff loses. End of story; the case is already over. That shouldn’t happen in the first inning of a ballgame.

The plaintiff has the burden, and if the jurors don’t care about the case, then that burden will be impossible to meet.

Updated, 2/24/13 — Well, now about that? Despite being ripped by the judge for putting the jurors to sleep and rambling in opening, the jury returned a $400M verdict against Dow Chemical (out of one billion dollars in damages sought).

And that means I was wrong. So if I saw a judge rip lawyers in a similar fashion, I would hedge my bet, right? No, I wouldn’t. As once was said, the race does not always go to the swiftest or the battle to the strongest, but that’s the way to bet.

May 3rd, 2012

The Chinese Dissident, George Zimmerman, Bernhard Goetz, and Jury Selection

It happens time again like clockwork. An item appears in the press, and the facts behind the story are not clear. And yet people leap up to take passionate stands on the issue. Since the desire of some people to leap to conclusions is also important for jury selection, a short look at three high-profile incidents is worth exploring.

Item 1 comes from 1984 when white New Yorker Bernhard Goetz is approached by four black teens on the subway asking for money, while one of them wields a screwdriver. (The wielding of screwdrivers as a threat was an item in the press, not an actual fact of what happened.) Goetz whips out a revolver and guns them down, seriously injuring all four. In a high-profile attempted murder case he asserted self-defense in an attempted mugging. The four teens claimed they were panhandling. Goetz was acquitted of all charges except the one for an unlicensed handgun.

But the one thing that really stands out in my mind 28 years later are the television images of the protesters outside the courthouse. Some screaming he was a racist vigilante that should be found guilty and some screaming he was merely defending himself and should be acquitted. These protesters shared things in common, besides the screaming: None of them actually saw what happened and none of them were listening to the evidence in the courtroom. They found their opinions based on what was already in their hearts and the information they cherry-picked from conflicting news accounts — some not even accurate, like the screwdrivers which the shooting victims had in their possession, but did not use in this incident.

Fast forward to Item 2, the shooting death of Trayvon Martin by George Zimmerman. In an eerie flashback to Goetz, we see people once again vaulting their way to opinions based on incomplete stories in the press. People take passionate sides on an incident where they are privvy to, at best, fragmented facts.

And right on the heels of Item 2, we go to today’s story of Chinese activist Chen Guangcheng who fled house arrest to take refuge in the U.S. embassy. After the diplomatic two-step he was released with various promises, including staying in China safely. But right after his release into a hospital came stories that he wanted to leave China.

Once again we will see people leaping to take sides, this time in the political arena where spin is more important than facts. Because facts, in this case, are largely in the secretive hands of the diplomats involved. But that will not stop the leap of faith to criticism (or support) for the actions of the diplomats.

We see people like this in our everyday lives, the types that form opinions based on headlines instead of facts. Identifying such people in the speed-work of jury selection is the hard part, because these are the people who will decide cases before the facts are all in.

I have no easy answers as to how to accomplish that, as often we are left with just minutes per juror. But the time-tested advice of many to ask open-ended questions is one way to help ferret out the attitudes. Asking people “How do you feel about …” is more effective in eliciting valuable information than trying to indoctrinate them by asking them to agree/disagree with certain points. The more people talk, the better chance they will reveal something about their opinions and attitudes that might actually be useful in determining if they can sit fairly.

November 22nd, 2010

Chandra Levy and The Rush to Judgment

A guilty verdict came today in the murder trial of Chandra Levy. She was an intern in Washington who might (or might not) have had an affair Congressman Gary Condit ten years ago. She was murdered while in Washington’s Rock Creek Park. Fox News, at the time, turned this into its summer story as All-Levy-All-The-Time trying to force Condit from office.

But that isn’t why I write on the subject. I write because, according to this article, the evidence at the trial of Salvadoran immigrant Ingmar Guandique, who was arrested last year and charged with the murder, was reported as thin:

Prosecutors Amanda Haines and Fernando Campoamor-Sanchez obtained a conviction even though they had no eyewitnesses and no DNA evidence linking Guandique to Levy. And Guandique never confessed to police. Prosecutors hung their hopes in large part on a former cellmate of Guandique, Armando Morales, who testified that Guandique confided in him that he killed Levy.

But that news blurb doesn’t mean I have an opinion on guilt. I wasn’t in the courtroom hearing the evidence. By contrast, peruse the comments of the article and look at the rush to judgment in so many different comments. People make up their minds, not on hearing evidence over the course of a trial, but on how some reporter distills it all down to a few sentences. Here are a few samples from the last 10 minutes (there area already over 2,000 comments):

This sounds fishy. No direct evidence—I doubt that this guy would have been convincted if he was a smiling white guy without tattoos. Yes, he committed other crimes, but that doesn’t make him guilty of this one by default. I’m ashamed of our justice system for this decision and I hope it is appealed and overturned.

I think it is weird there is no DNA evidence but at least this guy is going to jail so he won’t attack any more people, just think about what his other victims went through, very glad he is going to jail!

This guy is innocent and the justice system is guilty!!!!!!….what a bunch of stupid attorneys, judges and jury group…seriously??…any fool can see that he did NOT kill her based on NO evidence…the Levy family did not put closure in anyway on this situation…it just reopened the wound!

so how did he become the murderer…wheres the evidence?! I’d love to see it!

another sacco and vanzetti trial

This man didnot do it. The DNA belongs to the middleman of Condit. Fear for his life and bribe for his family made him accept the verdict.

Those knee-jerk reactions are familiar with anyone that has picked a jury. It’s the rush to judgment over “these kinds of cases” if you happen to have a routine sort of fact pattern, such as a car accident. There are many who have already made up their minds. Facts aren’t really important to some people, because they have already made an emotional investment by forming an opinion on the case.

And the job of the trial lawyer is to find out who these people are before they get a chance to sit.