Ever get that feeling that you are constantly being watched in the courtroom? It’s not just a feeling, YOU ARE. I learned this lesson years ago in a product liability case we took to trial in St. Louis. The trial resulted in a defense verdict. Yes, I said it. Defense verdict. Every once in awhile trial lawyers do actually lose, even if they don’t like to talk about it. Gerry Spence aside, any trial lawyer that says he has never lost a trial probably hasn’t tried too many.
This being a state court trial, after the verdict, our investigator was allowed to interview the jurors. Among many interesting comments was one specifically directed at me. One of the female jurors commented that I needed to be nicer to my staff. This was based on her one observation of a ten second moment in the trial. We were looking for a particular exhibit at the time and I was telling my paralegal to quickly go to our backup exhibit box and pull the exhibit. At the time, a witness was on the stand being examined by my colleague and we were seated at the counsel table. I spoke to her at a level that was definitely not audible to the jury, however, the juror had noticed my demeanor and did not think I was speaking to my paralegal appropriately. The fact that we could not find the exhibit was not the paralegal’s fault and neither of us thought anything of the exchange at all. In our minds, we were simply dealing with the situation, but my urgency was mistaken for disrespect by the juror.
Ultimately we discovered that the trial was lost over a fairly technical engineering issue that had nothing to do with this exchange, but I learned a valuable lesson. While I find the research claiming that jurors vote for the party they “like” to be inconclusive, all things considered, I would rather be the lawyer the jurors like.
A word advice to new litigators and a refresher to the warhorses: never forget that you are always under the microscope in the courtroom. This is true even if the jury should be focused on something else and even when you are sitting at a table removed from the action. If you are in the courtroom, you will be watched. You may be the most discreet nose picker in the world, but if you do it in the courtroom, it is certain that somebody is going to see it.
