Jury Duty: Pointers From the Other Side of the Jury Box

WDC Journal Edition: Spring 2006
By: Richard L. Zaffiro - American Family Mutual Insurance Co.

I had the fortune of being on Milwaukee County jury duty recently, and wanted to share some observations from the other side of the box which you may want to use in your trials.

Jury duty is BORING. Potential jurors spend hours in a bus terminal-like waiting room, sitting around waiting for their name to be called before being assigned a number, made to stand on that number, wait some more, and then (if they are lucky) go to a court and wait some more, all instead of doing the necessary, pressing or enjoyable activities of normal everyday life.

By the time you the juror get to a courtroom, you want something interesting to happen, and do not want another person to waste another minute of your time. From my experience, voir dire is when the lawyers must start making jury duty interesting and stop wasting jurors’ time.

The voir dire I sat through was pointless to me as a lawyer but, more importantly for this article, useless to me as a potential juror. After the judge told us in the briefest of ways what the case was about (the defendant was alleged to have caused criminal damage to two police squad cars), the lawyers began their voir dire. There was no discussion regarding the facts of the case, possible defenses, or why this case was going to trial and had not settled. The whole process of voir dire seemed to be another way that the system was wasting our time. We had to sit and listen to the lawyers ask useless questions to which generally no one responded, questions like: “If you believe the defendant is innocent, will you have a hard time acquitting?” or “If you believe the State has proved guilt beyond a reasonable doubt, will you have a hard time convicting?” (as if some juror was actually going to answer “Yes” to either question).

All the voir dire questions asked were generic and rhetorical, so that there was virtually no interplay between jurors and the lawyers. Even after I gave my information in response to the chart hanging on the courtroom wall and told everyone I was a lawyer, I was never asked what area of law I practiced or with what firm; for all those lawyers knew, I was a practicing criminal defense lawyer. After voir dire they still did not know, because they did not ask.

I was also waiting for someone to follow up with individual questions to those of us who ourselves have been victims of crime in the past (this was a criminal damage to property case, and many of us have experienced criminal damage to our cars and homes). Because no voir dire questions were asked, for all these lawyers knew there were people selected for service on this jury who, because of experiences with how their own victimization was handled when their cars or homes were broken into, had strong pre-judgments which might be relevant to how they would do their job as jurors in this case.

On voir dire in your trials, I suggest you slip in at least something of the story you hope to prove at trial. Try to engage some of the jurors individually with meaningful questions, not only to get to know their prejudices but also to keep their attention during voir dire and relieve the boredom that has been their day up to that point.
As a lawyer, I believe voir dire is when you want to plant the seed of your defense with the jurors, to the extent your judge will let you. For example, if the defense in the case on which I was a potential juror was that the damage to the squad cars was unintentional, or somehow justified by some other defense recognized in law, I would have appreciated some information about that during voir dire. As a potential juror, I don’t know and I don’t care if opening statement is when I am supposed to be told about the case; I want the questions in voir dire to pique my interest by telling me something about why this case did not settle and what I as a juror am looking for from each side in this case if I am selected to serve. I also suggest that somewhere, in voir dire itself or in opening, a good lawyer may make something of a connection with the jury by recognizing the sacrifices they have just gone through to answer a jury summons. The sacrifices are substantial.

Before finally being sent to a courtroom for possible jury service in your case, potential jurors sit for hours of mind-numbing tedium in the jury assembly room. Before you ever see them in a courtroom, jurors are worrying about losing income, hiring babysitters, rearranging schedules, incurring expenses, and fighting downtown traffic and parking. Once they arrive, they find themselves sitting with dated magazines, having (in Milwaukee County at least) only two computer terminals for checking e-mail in a room with over 100 people in it. Not only is it boring, it is expensive. While jurors are given tokens they can use for some vending machine items (water) but not others (candy), they do not get free parking due to Marquette interchange reconstruction, so they have to spend their own parking money to come and be on the jury. They receive low pay ($8 plus $3 travel allowance for a half day, $16 plus $3 travel allowance for full day while parking all day in the $9 per day parking garage), buy their own lunch until they are actually on a jury, are made to watch boring time-killing videos and speeches telling them what they are there for and what is going to happen, and are made to sit in a room with strangers for hours, on the outside chance that someone might call their name to go to the courtroom where they now sit before you. Recognize these sacrifices, and thank the jurors.

On the case on which I sat, one fellow potential juror had volunteered on voir dire that she had bad experiences with police in another state, yet it was not until after peremptory strikes were complete and she had been selected as a member of the jury that the lawyers asked to approach the bench and strike her for cause.

Due to the seemingly endless boredom, things like side bar conferences are of great interest to the captive audience of potential jurors sitting in the box. The judge and the lawyers were clearly audible from the jury box in the side bar regarding this strike for cause (the judge, exasperated by the late objection, said: “For heaven’s sake!”). While we assumed as jurors the conversation was meant to be private, listening in to this fully-audible discussion helped to relieve the boredom of the preceding hours. Side bars should be done quietly so that juries cannot hear because, whether out of boredom or curiosity, jurors will try to hear what is said if they can. We could hear most of what was said in this side bar, so that the attorneys and court might as well have done it in full voice.

After all of these travails, I was not selected for the jury. After buying my own lunch, I went back to the jury assembly room and continued to read my book for hours until my name, along with a number of others, was announced over the loud speaker. We were given our jury service letter and (only because I made a point to ask; otherwise, I would not have known) I was told I did not have to report for the second day on my jury summons.

This experience made a big impression on me, and I feel that I have learned several important lessons for trying my own cases. For example, make the case interesting by telling your story at the earliest opportunity, speak to potential jurors individually during voir dire whenever possible, and also sympathize with the process they have just had to go through.

I believe this advice will help you connect with the jury better and more quickly. I wish I had been selected to serve on the jury in the case so could tell you more about jury service from a personal perspective, but hopefully, these thoughts as well as what jurors on your prior trials are willing to tell you about why they did what they did in your last trial will improve your jury trial practice.