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What’s a new lawyer to do when faced with a jury trial for the first time? Despite months of discovery, numerous depositions and a daylong mediation, the parties refuse to settle. The trial date and jury demand have been on file for more than a year, and the clients are looking forward to finally having their day in court. The lawyer, on the other hand, does not share the clients’ enthusiasm. Rather, as one new lawyer later admitted, “I suddenly felt clueless.” I can understand that feeling — so here are some suggestions for allaying the fear one might have in leaving a client’s fate to the fairness of strangers. First of all, the lawyer on the other side may have that same feeling. Years ago the expectation was that all trial lawyers had tried a different jury case every week, keeping current with procedure and the law. Today that is not the case. Summary judgments, alternative dispute resolution, complexity of the law and expense all work to limit the number of jury trials. It may have been many years since opposing counsel has tried a jury trial to verdict and researched the most recent supreme court cases, unlike a new lawyer who recently studied for the bar exam or researched the issues for a more senior lawyer. The lawyer who is about to face a jury for the first time has yet another advantage. In my experience, a lawyer who can announce to a jury that this is a “first,” and ask the jurors not to hold any mistakes against the client, begins way ahead. So effective is this admission in winning over a jury that I seem to recall a lawyer in my court shamelessly using the same opening at least twice. Once prepared on the facts and the law, no lawyer ever should fear facing a jury. I formed my own belief in juries the first time I tried a jury case as a judge. It was a criminal case of shoplifting. Voir dire consumed far too much time — I was a new judge, remember — but by the end of the day, a jury was seated. In their opening arguments the attorneys for the state and the defendant spent most of their time contrasting “reasonable doubt” with “a preponderance of the evidence.” I was certain everyone in the courtroom was thoroughly confused. For almost a week the jurors listened patiently as employees of the store, the defendant and others were examined, cross-examined and taken on re-direct. Objections were made and ruled on, and jurors were instructed to “disregard that last statement.” Closing arguments again emphasized the burden of proof. As the lawyers and court staff waited hour after hour for the verdict, I began to wonder if I should research how long a jury is allowed to deliberate before the judge declares a mistrial. Finally, there was a verdict: not guilty. But, then, as we left the courthouse, I overheard one of the jurors tell a disbelieving prosecutor, “Most everybody thought she might be guilty.” Here the juror paused, then added, “But we didn’t think you proved she was guilty beyond a reasonable doubt.” PAY ATTENTION Why do juries always seem to get it? One explanation is they are paying attention. They are listening and watching. I remember a Bexar County, Texas, sheriff once telling me that he always took prisoner complaints seriously because he knew that, locked up in jail, chances are you spend every waking hour thinking only about your case, whether breakfast is late, and how the guards behave. Jurors, too, are isolated. The judge repeatedly instructs them not to talk to anyone — not even fellow jurors — about a case. So jurors listen. They listen to the lawyers, the witnesses and the judge. Their entire attention focuses on this one case. They have time to notice if the lawyers are prepared and to observe the demeanor of everyone involved. And once jurors are locked in the jury room, they are anxious to talk with the other jurors about what they have seen and heard. They conscientiously begin to examine all the exhibits. I remember a workers’ comp case (in the years when a worker was entitled to a day in court) in which we sent to the jury room a number of exhibits that included a 3-inch stack of the plaintiff’s medical records. After several hours of deliberation, a note came from the jury. They had deciphered pages and pages of a doctor’s handwritten entries and discovered that the plaintiff’s claimed injury actually occurred many years before off the job. The attorneys in the case had overlooked this key piece of evidence, and the jurors wanted guidance as to how they should proceed. Today, more than 27 years after I heard my first jury case, I have not lost my faith in juries. In fact, the latest jury case I heard a couple of weeks ago strengthened my belief. It was a family law case, a custody battle — the kind of case in which reaching a decision can sometimes seem an impossible task. Once again the collective wisdom — and common sense — of the jurors was demonstrated by the verdict and what happened after the jury returned its verdict. Instead of immediately scurrying out of the courthouse, hoping to avoid the parties and their respective families, several of the jurors remained in the courtroom. They then took the time to go over several specific portions of the evidence with both parents, offering Solomon-like suggestions for the future. I began by asking what is a lawyer to do when faced with a jury trial for the first time. My answer is this: Don’t underestimate your own abilities or the wisdom of a jury. Go for it. Rose Spector serves as a senior visiting judge, adjunct professor at the LBJ School of Public Affairs at the University of Texas and mediator/arbitrator with the Austin firm of Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel. She previously served for 18 years as a trial judge and six years as a justice on the Texas Supreme Court.

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