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Who Knew?

Come next year in California and Arizona, voir dire might either be a whole lot shorter, as attorneys accept jury panels much more quickly, or a whole lot longer as attorneys scramble to find bases to challenge jurors for cause.

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(Image via Getty)

Attention all lawyers who try cases in Arizona. Effective January 1, 2022, there will no longer be any peremptory challenges available in either state civil or criminal proceedings. Challenges for cause will still be available, but the ability to kick off a juror for whatever reason, or no reason, will no longer exist. So, the ability to ding a prospective juror will be essentially gone and this elimination of peremptories will help to ensure that the venire looks like the local community. Remember the concept of “a jury of one’s peers?”

Anything that works to eliminate bias, either explicit or implicit, is a good thing. I came across a graphic that describes every kind of cognitive bias in a clever format. I think it’s a useful tool to look at, especially since Arizona may well be only the first state to ban the use of peremptories. My sense is that it won’t be the last nor should it be. Perhaps issues of peremptory challenge abuse may one day be a thing of the past.

California has also legislated changes to the jury selection process, at least in criminal cases. The Legislature intended that the law be “broadly construed to further the purpose of eliminating the use of group stereotypes and discrimination, whether based on conscious or unconscious bias, in the exercise of peremptory challenges.” Starting next year, it will be harder to justify the use of a peremptory challenge, as the trial court will have to evaluate the reasons to justify it considering “the totality of the circumstances.” There will be some explaining to sustain the challenge. Even though Batson v. Kentucky held that the use of peremptory challenges to remove a potential juror from the jury pool based on race violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution, it’s still been fairly easy to kick off unwanted jurors, whether by prosecution or defense. Come next year in California and Arizona, voir dire might either be a whole lot shorter, as attorneys accept jury panels much more quickly, or a whole lot longer as attorneys scramble to find bases to challenge jurors for cause.

So, now that we’re 18 months (and counting) into the pandemic, what do you think a return to work will look like? It certainly won’t be a return to the prepandemic normal, but what do you think will take its place? There are all sorts of theories, hopes, and wishes, but what we had before we probably will not see again, if ever.

One of the issues that a RTW will face is the concern about younger/newbie lawyers who like working from home and don’t see any pressing need for face time in the office, at least not every day. I think that we dinosaurs who are still among the working, and even those who have not yet aged into dinosaur hood, don’t truly understand how newer lawyers want to practice. They are tech savvy, mobile, and don’t want to be chained to a desk. They want flexibility and the ability to work from anywhere anytime. And I think a lot of younger clients feel the same way. How to accommodate them? I don’t think it’s a matter of just throwing more money at them to retain them. More money means more hours. Wait, what?

In June, Above the Law and Major, Lindsey Africa published the results of a survey about millennial lawyers and how they could reshape the legal industry. If you haven’t read it, or at least skimmed it, it’s worth your time (and I don’t say that just because ATL was involved in the survey). It’s time for some changes. I think a reconfiguration of the provision of legal services is needed, shaking off the cobwebs of how things have always been done and being creative in figuring out new ways to deliver legal services to clients efficiently and economically. After all, isn’t that our job?

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In some respects, the survey is not surprising. The compensation package still leads the list of priorities, but a close second is a firm’s commitment to fostering work/life balance and on its tail, that is, the third, is the commitment to training and professional development. Dead last on the priorities list is a firm’s commitment to pro bono work, which does not bode well for enlisting attorneys for pro bono opportunities. Ironic, isn’t it, that the third priority is the commitment to training and professional development? One way to get that training is participating in pro bono work, but then you knew that already, right?

How refreshing to read that an attorney facing disciplinary charges has accepted responsibility for what she’s done. Often, an attorney will offer any and every available excuse (and even some not available) to wriggle out of responsibility. That’s the situation facing an attorney in Ohio who is looking at discipline for having had sexual relations with a client, one of the biggest no-nos for an attorney. Regardless of the outcome, she did the right thing. How many times have we seen attorneys and judges try to evade responsibility for what they did or didn’t do?

There’s now a new naval weapon that stops people from talking. I am not making this up.

It’s called AHAD, acoustic hailing and disruption. It’s a device that disrupts a person’s concentration so that the person can’t communicate effectively with other people. The article says it won’t be used on the battlefield but is more likely to be used for crowd control. I am not sure why the Navy had to invent this; all it had to do was ask lawyers. We disrupt conversations every day without the need for any device and at no cost.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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