Friday, January 15, 2010

Juror Notetaking and Juror Questions - Part Four

By John DiMotto

In my last post, I discussed the insight that the lawyers can gain from juror questions. This value from allowing juror questions cannot be overstated.

Good lawyers prepare very hard for a jury trial. The do not want to leave any stone unturned. Such attention to detail is of the utmost importance if the lawyer hopes to persuade the jury to his/her proposition. However, sometimes lawyers forget that the jury hasn't a clue as to what the case is all about when they walk into the courtroom. Sometimes the lawyers take for granted what is obvious to them alone and no one else and skip over important evidence. I call it the "missing the forest for the trees" syndrome.

In almost every case where I have allowed juror questions, at least one juror submits a question for a witness which causes one of the lawyers to scratch his/her head and, during the review in chambers, to say something like "wasn't this juror paying attention?" However, usually the juror's question is justified based on the failure of the lawyer to connect all the dots. Lawyers must never forget that just because they know the evidence and inferences that flow from the evidence does not mean the jurors will get it as well. Our legal training does set us apart from nonlawyers and trial lawyers must never forget this fact.

By allowing juror questions, lawyers get an insight as to what is, or is not on the jurors minds, and gives them the opportunity to see whether they are effective in their presentation of the case. If not, they can address their deficiencies while this case is ongoing.

I have had some lawyers say that this benefits the unprepared lawyer to the detriment of the prepared lawyer. However, it has been my experience that both sides benefit equally.

We ask a lot from our jurors. Is it too much to let them "ask?"

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