[This originally appeared in The Trial Lawyer Magazine, Winter 2004.]

By Walter H. Walker, III

A friend of mine, a trial lawyer, recently said to me, “I love my juries.” This was at a cocktail party and yet I was all over her in an instant. “Which juries?” I asked. “All juries? Any jury? Regardless of where it is or who is on it?” As she tried to beat a dignified retreat across the room, I sailed after her unfurling some of the least charming aspects of my litigator’s personality: “Do you love everyone who is on a jury or do you just love the jury as a whole? Do you love all juries equally? Has every jury you have ever seen acted the same? Does it make any difference what the subject matter is, or what your client or your opponent or the judge is like?” And then, finally, I cornered her. Her eyes darted wildly as I hit her with the big one: “How can you say you love a jury when you don’t even know who is going to be on it?”

How about if your jury consists of one judge (retired, now with JAMS), two practicing lawyers, a third-year law student, a fourth-year PhD student in neurology, a Vice President of Gump’s, a flight attendant, a former Santana band member, a firefighter, a computer security specialist, a student-teacher, and, oh yes, a Zen accountant? Those were the people who heard my most recent case in San Francisco.  Would my friend have loved them?  Well, I did. Pretty much. Except for the Zen accountant, whose beatific smile was a constant reminder that no matter how badly damaged my client was, tomorrow would be another day.

Why, I am asked, did I leave a judge on the jury? Let us just say that it was clear from the hearing on motions in limine that the trial judge was going to be…different, possibly difficult, definitely unpredictable. I respected the JAMS judge and felt confident she would not let the case go too far astray.  Why leave the other lawyers? Because I wanted the JAMS judge enough that I was willing not to challenge anybody unless they were wearing an “I Like John Ashcroft” button. Besides, I had a good case and I thought that lawyers would not be taken aback by the fact that my client earned $150,000 a year.  Why did I leave the Zen accountant? I made a mistake. I did not know he was going to smile at my client for an entire week and then argue that no money should be awarded for pain and suffering.

This, obviously, was not a typical jury. But then again, what is? I tried an auto accident case in Eureka once in which I was representing an Israeli tourist and I was afraid I was going to be hometowned. It turned out that virtually every juror had fled there from someplace else, and they had no trouble identifying with my client (in fact, some of them emailed her for months after the trial).  After trying a malpractice case for two weeks in Ukiah, I ran into the jurors in a bar celebrating the verdict and one of them asked me, “What was that operation that you guys were talking about?”  In San Francisco, a jury returned a verdict for a Cambodian woman who had contracted AIDS from a blood transfusion and when I asked why they had found the victim partially responsible, I was told, “She could have pulled that blood transfusion line out of her arm if she didn’t want it.”  In Napa, I tried a products case that went in so well the defense counsel asked the judge to declare a mistrial and recuse himself because he was always ruling my way. The jury then returned a defense verdict and when I asked why, one of the jurors said, “No matter how badly mangled that boy’s hand is, he’s gonna have a better life than my son.”

In Las Vegas, a jury returned a defense verdict at 10:00 at night because it had gotten so annoyed with the clamoring of a plaintiffs’ proponent in the jury room that the quorum voted against her. In Auburn, a jury deliberated for two and a half weeks and then on the Friday afternoon before Christmas three jurors switched their votes because they had not yet done their shopping.  In a plane crash case in Boston, I had a jury return a verdict that was twice as high for the pilot as the co-pilot, even though he had half the damages of the co-pilot, just because he was more engaging on the stand.

No doubt my friend, a bright, attractive woman who primarily represents defendants, has had different experiences, but I am not alone in my concern for the vagaries of the jury system.  At the most recent CAOC convention in San Francisco, Terry O’Reilly, one of our finest practitioners, spoke on the theme that the American juror is not a kind, compassionate juror, but a vengeful juror. Twenty years ago, I might have taken issue with him. Back then, I expected jurors to identify with the victim—to look at him or her and think, That could have been me! Now I watch television commercials in which a handsome, bass voiced pitchman in a mahogany-paneled courtroom points to an empty chair and says, “That could be you!” and I know that such messages fuel the ever-increasing attitude among the public at large that a personal injury plaintiff must be a no-good, money grubbing, goldbricker who needs to be smacked with a good dose of “tort reform’ in order to save the national economy.

All that being said, please do not think that I am discouraged.  Nor should you be.  What we need to do is continue to adapt, and keep adapting, to our constantly evolving field.  Terry’s point, for example, is that we should count on today’s jurors being mad rather than sympathetic, and then harness the vengeance of those jurors–and turn it against the defendant. Bill Smith and his partner R.J. Waldsmith have managed to do this repeatedly over the past few years by using high tech visual presentations that show rather than tell the television-watching juror populace what defendants have done and what their clients have experienced as a result.  Other practitioners are increasingly using focus groups to determine what resonates in a particular community.  And if none of that appeals to you, perhaps you will want to take advantage of this new age of private judging and opt for binding arbitration with a judge of your own choosing, reasoning that the devil you know is better than the devil you don’t.

For those of us determined to do the best we can for our clients, there is no certain solution for every case.  We can and should attend SFTLA seminars and other litigation conferences, listen to war stories, tell our own, and try to benefit from the collective experience. But as I was so subtly trying to tell my friend at the cocktail party, the one thing we cannot do, no matter how good we are and how much we know, is take our juries for granted.