I would like to offer a counterpoint to Scott Silverman’s June 4, 2018 article “The Ever Decreasing Jury Trial Rate: Why Is It on Life Support?” First, I have deep respect for Silverman as a former judge and a current mediator. Former Judge Silverman is always on my short list of mediators and I have used him several times; sometimes with success, sometimes not. Last year he mediated a complicated lawsuit for civil theft I had filed against a local law firm and developer over a large escrow deposit on a condominium project that the developer forfeited. That case just wasn’t meant to mediate and the trial went forward against the law firm.
The key part of the case was navigating jury selection, where I had three defense lawyers in the venire! Thankfully, I got two of the attorneys for cause and used a pre-emptory on the last one. The jury I ended up with consisted of five millennials and one bored baby boomer. The five millennials were fascinated with the case, paying close attention and asking questions throughout the trial, much to Judge Jorge Cueto’s consternation. On day three, the law firm ran up the white flag and settled the case with my client for a very satisfactory sum that covered his deposit, interest and attorney fees.
Although the trends, as former Judge Silverman correctly points out, are toward settlement of disputes, either through mediation or arbitration, there are still some situations where you have to scratch and claw for what you and your client believe is right. That is never going to change, and that is what juries are for.
A couple of weeks ago, I tried another case that only had a loss value of $75,000 with possibility of interest and attorney’s fees on top of that to the prevailing party. Once again, it was a millennial jury, this time across the board. The oldest juror was 34 and the foreperson was an 18-yea- old college student, who just finished her freshman year at Tufts University in Boston. It was a short two-day trial. Once again, the jurors paid extremely close attention throughout the trial and the only question came when they were deliberating and someone asked the judge if the court reporter could read back McKenna’s closing argument and the amount McKenna had written on the verdict form during his closing argument. I liked that question, but the judge declined the read back or the answer.
In the end, I got the verdict I was looking for and afterwards, the millennials stuck around well after 7 p.m. to ask more questions about the case. I asked one of the jurors why they paid such close attention to a pretty boring business dispute. The answer was they liked watching the lawyers, witnesses, and judge in action and seeing how the system works. They also liked trying to determine who is telling the truth. So I have to respectfully disagree with former Judge Silverman’s comment that jurors may have little or no interest in serving on a jury at all. Millennials are a different breed and if you can talk to them, and not down to them, and have the better trial narrative, they’re game and they’ll do the right thing by you.
I know we need a new courthouse with updated technology, (I was playing video depos to my jury and taping wires down all over the floor so jurors wouldn’t trip on their way to the jury box), but we make do with what we have, until the powers that be get their acts together. The presiding judge over the last trial, Judge Mavel Ruiz, couldn’t have been more solicitous of this jury and apologetic for the sardine box which was the jury’s deliberation room, but they didn’t seem to care. The last question I had for the jurors as they were departing was how they rated the experience. All agreed that it was fascinating, notwithstanding the old courthouse. Don’t count these millennials out. I think our institutions are in good hands with them and for anybody who thinks they don’t care and can’t put their iPhones down, think again because you are going to need them on your juries.
Paul A. McKenna is the owner and operator of Paul A. McKenna & Associates. He focuses his practice on personal injury, wrongful death, commercial business disputes involving fraud, real estate disputes and condominium and homeowners association law.