Jury Duty, Small Law Firms, Trials

Beyond Biglaw: Lessons From Jury Duty (Part 2)

What did litigator Gaston Kroub learn from jury duty?

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In last week’s column, I discussed some aspects of my experience on jury duty. While I enjoyed myself during my short stint as a juror, I am also someone who is comfortable around a courthouse. And I was pretty confident that I would be able to take away something useful from the experience. At the same time, I had to serve just one day, and did not even make it to the empaneling room for voir dire. It also helped that I was actually able to be pretty productive work-wise, taking calls and responding to emails throughout the day. The closest analogous experience I can think of is a day at an airport lounge, but without the free drinks and comfortable furniture.

Despite my limited encounter with the court system as a juror, I was reminded of some important considerations that any litigator should keep in mind, both as we prepare our cases during discovery and, more importantly, as part of trial preparation and presentation. As I discussed last week, and as the anecdote I provided demonstrated, jurors would generally much rather not be there. It is hard to blame them, since even those jurors who harbor idealistic considerations about the importance of the jury system and the moral value of civic service are often distracted by a work or personal issue that needs attention. For that distracted juror, it is of lesser concern therefore that you as trial counsel are presenting the third consecutive day of testimony about a contractual dispute between a vendor and a customer.

Just knowing that jurors don’t want to be there has some value for trial lawyers. A healthy way to think of that fact is to accept it as a challenge. Can you as a trial lawyer take your case and infuse it with a compelling moral element that will engage the jury? Because you need to do so to keep your distracted and disinterested juror from falling asleep — especially after the lunch break. Or from mentally working on their fantasy baseball team while you are in the midst of your brilliantly constructed and calibrated cross-examination of the other side’s expert.

I concede that creating an engaging presentation may be more difficult in a civil, as opposed to a criminal, case. At least in criminal cases, jurors tend to take seriously the decision about whether to send a fellow citizen to prison. Absent a compelling moral theme, however, maintaining juror interest in a battle between rich company A and rich company B is a more difficult proposition — especially when the only consequence being considered by the jury is which rich company gets to keep, or needs to pay, some pot of money.

Because of how difficult it is to keep a jury engaged during trial, anyone who has worked with a real trial lawyer has been conditioned to develop their case “themes” as early in an engagement as possible. As with television dramas, themes that contain an emotional element, or a moral call to action, are more likely to resonate with an audience. In patent cases, we try to to keep juries entertained by presenting them with a discussion of the “invention story” for either the patent or the accused technology. Unsurprisingly, lawyers representing individual inventors in patent cases are fond of “David v. Goliath” themes, while lawyers representing corporate defendants try and personalize the accused products or services by introducing the jury to the engineers who (hopefully independently and without knowledge of the asserted patent) developed them. Case themes are important, and if you need motivation in order to come up with compelling ones, just remember how disinterested your jury probably is in your particular case. And also remember that just because the case has consumed your life for the weeks and months leading into trial does not make it interesting to Joe or Jane Public.

Second, I was reminded of how much appearance matters for trial lawyers. No lawyer wants to stir up animosity in the jury box by projecting a “Richie Rich” image, unless there is a strategic reason to do so. Jury service reminded me just how big the gap is between “professional dress” and what the average American wears on a daily basis. While the average juror might not want to wear a suit, that does not mean that they won’t afford more respect to a lawyer who chooses to dress professionally. A lawyer in a disheveled suit, however, will send a poor message to even the worst-dressed and most “grooming challenged” juror on a panel. Done right, professional dress conveys credibility. You want jurors to think you are credible.

Finally, I left jury duty with a newfound appreciation for the value of trial graphics — and the importance of making sure any presentation of facts or evidence is done in the simplest, most striking way possible. This is not to say that jurors are not intelligent, or capable of following a complex presentation. Only that it is the responsibility of the trial lawyer and their team (including a graphics vendor, if that is in the budget) to make the jury’s job as easy as possible.

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Because while we as lawyers may take our facility with words and ability to process written information for granted, an anecdote from my trip to jury duty showed me at least that such skills may be in shorter supply in the general population than one might believe. Early on in the morning, the jury duty “attendant” made an announcement that everyone should check their jury summons cards to make sure that the date on the card actually matched the date we were in jury service. If the dates did not match, people should come up for instructions. Of course, dozens of people duly got up and took their cards to the staff people for review. And every single one of them was wrong about whether the date on their summons — which very well may have been the only date printed on the summons at all — matched the actual date that they were serving on jury duty. Have those jurors in mind — when you decide what your case theme will be, how you will dress, and what your trial graphics will look like. Know your peers. It will help you win your cases.

Please send any comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome. For those interested in the intersection of intellectual property litigation and investing, I have also started a new blog/newsletter, “The Markman Note,” which is being hosted at Mimesis Law. There will be a video component to the project that will be launching soon as well. Feel free to check it out and let me know of any thoughts or suggestions.

Earlier: Beyond Biglaw: Lessons From Jury Duty (Part 1)

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.

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