Helping Trial Lawyers Navigate the Appellate System

I, Juror No. 3

Since I became a practicing lawyer, I’ve been called for jury duty four times: twice in Dallas County (where I lived from 1997 to 2003), and twice in Travis County (where I live now). This past week, I served my second stint as an actual juror.

My first experience as a juror was in Dallas. It was a felony assault case with facts better suited to a soap opera than a criminal trial. As we began deliberating, one juror announced that he didn’t care what any of us said; he didn’t trust the Dallas Police Department, and he would never vote to convict the defendant. The gentleman stuck to his guns, even though everyone else thought the defendant guilty. Just as we were about to send out a note telling the judge we were deadlocked, we were notified that the prosecution and defense had reached a plea agreement. Thus ended our service.

Last week’s case—also a criminal matter—was tried to a verdict. I don’t want to reveal too many details, but I left with a few observations worth sharing and throwing out for discussion:

  • Don’t assume you’ll be struck just because you’re a lawyer. I was the second civil-practice lawyer seated on this jury. Each side only had 30 minutes for voir dire, which provided a very limited opportunity for vetting and ferreting out the potential jurors the parties might find undesirable. We had a Travis County Sheriff’s officer and an Austin Police Department officer—both in uniform—on the venire. Neither of them made it on the jury.
  • Criminal cases need better pretrial procedures. Considerable time was wasted sending the jury in and out because the parties didn’t seem to know who the other side’s witnesses were going to be or what exhibits were going to be offered into evidence. The trial judge (who I think did a first-class job) had to take up a lot of objections that could have been dealt with up front.
  • Some cases can be tried without over-relying on technology. The prosecution, led by a young lawyer, used PowerPoint and video evidence, but relied mostly on police officers’ testimony. The defense, led by a very seasoned attorney, tried the case by pen and legal pad. Both were legitimate approaches for what turned out to be a simple case.
  • Advocates should get to the heart of the matter and avoid redundancy. Some of the evidence was repetitive, of questionable relevance, and arguably hurt the party putting it on. When the jury starts rolling its collective eyes, watch out. A jury that feels like you’re wasting its time can turn on you.
  • Explain uncommon terms. The name of a physiological condition was repeated throughout the trial, but neither side defined it or told the jury how to spell it. Trial lawyers should make sure the jury understands what you’re referring to and its significance to the case.
  • Criminal jury charges are much simpler than civil charges. At the guilt/innocence phase, we received a three-page jury charge instructing us on the law and asking us to render one of two possible verdicts. As I read the charge, I felt a bit sorry for civil juries, which must deal with complex instructions and definitions and often have pages upon pages of questions to answer. (I should know, because I’m frequently the one who drafts them.)

Several lawyers have told me they would like to serve on a jury. If called, it’s an experience I highly recommend, despite lost time at work and other inconveniences that come along with it. Getting first-hand experience as a juror provides a unique perspective of the system we are sworn to support and a renewed appreciation for our respective roles in that system.

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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