The following essay was written by Norberto A. Garcia, a certified civil trial attorney and partner at Javerbaum Wurgaft in Jersey City, who also currently serves as the second vice-president of the New Jersey State Bar Foundation and co-chair of the New Jersey State Bar Association’s Diversity Committee. This piece has been edited for length and was originally published in the Diversity Committee’s Oct. 2017 newsletter, one of many publishing opportunities for members of the New Jersey State Bar Association. For more information, email firstname.lastname@example.org.
Diversity issues touch upon every aspect of a trial lawyer’s practice—from the initial client retention to the closing arguments before a jury. This article discusses the diversity issues I have confronted during 25 years of trial practice and taking 100 jury trials to verdict.
I practice as a trial lawyer in New Jersey—the most diverse state in America. Most of my trials occur in Hudson, Essex and Bergen counties—traditionally immigrant counties that contain a high percentage of first-generation Americans. The jurors I try to persuade are as diverse as the clients I represent.
During initial client interviews, diversity is a big factor in firm retention. A client wants to be comfortable with your office staff. They prefer that you speak their language. They look for a firm that is familiar with the area where the action arose and the court where the matter will be litigated.
Diversity is important during the investigative and discovery process. You must know your community and you must retain the experts who will connect with that community. In presenting evidence to a jury, a trial lawyer must be sensitive to the subtle differences in the way life experiences shape the way a jury absorbs information. People whose family has been in the country for generations may favor an expert with great academic credentials, while new arrivals may favor an expert with great experience on a topic.
Diversity is important in the preparation of your trial. The more experienced and successful you become as a trial lawyer, the more removed you become from the pool of people who actually sit on jury trials. If your legal team lacks diversity, you do not have anyone to tell you when the optics are bad on your case. You may not realize that you appear to be a bully or a wimp in a situation you think you are handling in a level manner. All it takes is a single slight or insult to lose a juror forever—and that juror can take down your entire case.
The area of practice that remains the province of white males is the expert witness arena, especially on the defense side. That is starting to change. I make every effort to retain experts who are diverse, reflect the cultural make-up of the jury pool and have ties to the community where the litigation arose. I enjoy arguing to the jury that they should be suspicious of the adversary’s expert because he or she was plucked from the other side of the state to testify against my client. Why did my adversary have to go so far for an expert, when there are so many qualified local experts in our county?
During jury voir dire, you must have access to all the tools in your diversity tool box. While using stereotypes is generally frowned upon, there are countless books, articles and seminars that teach you how to make generalizations based on backgrounds. Generalizations are helpful, but can easily slip into the dangerous waters of stereotypes. The use of stereotypes to label people of certain backgrounds as more or less sympathetic to civil lawsuits usually leads to miscalculation. It is a tool of limited value.
During trial, a diverse legal team gives you different perspectives on the same issue.
A diverse set of eyes during trial can caution you when you start to cross the line with a witness. On cross-examination, when you brutally take apart a powerless lay witness, you may be alienating rather than persuading the jury—they connect with the witness rather than your client. Diverse members of vulnerable cultural groups are more apt to catch these moments. By the same token, many jurors appreciate when an arrogant expert witness is humbled by effective cross-examination.
Jurors are given tremendous power at trial. People who are wealthy, run businesses or have type A personalities generally get excused from juries. Many of the people who remain on jury panels often have lives in which they are otherwise powerless. They have bosses, spouses and children who do not listen. They have limited economic and political voice. They are thrust into a situation where everyone in the room is telling them they are the most important voice in the room. That voice is a tool they are not accustomed to exercising. Your job as a lawyer is to show them how to effectively use that tool during deliberations.
‘A lawyer, a psychologist, a sociologist and a psychic’
To remain a good trial lawyer, you must make an effort to immerse yourself in diversity. That is the only way to stay in touch with the jurors you must persuade. Socialize and interact outside your comfortable social circle and the legal professional bubble. Perform community service, volunteer at church events and stay well versed in cultural changes. Don’t wear your ignorance of today’s music as a badge of honor—shed it. Read the occasional article or book from a source you would not customarily gravitate toward. Watch the ‘other’ news networks.
Conventional wisdom means less than it once did. Voir dire questions, like opinion polls, get discounted because people do not always mean what they say or say what they mean—especially in a courtroom setting. In choosing a jury you have to be a lawyer, a psychologist, a sociologist and a psychic. Having a diverse team helps.
There is no magic formula. No strategy applies to every case. The best you can do is to be prepared and stay aware, with eyes open. The more eyes, especially diverse eyes, the better.