Judges and Juries

Litigation
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Which Court Should You Choose?

It depends on several factors, including whether you decide to sue under federal or state law (or both). States often have laws or statutes similar to the federal anti discrimination laws. Many states also do not limit the damages on these actions, unlike the federal laws, which cap the damages depending on the number of employees your company employs. If you file your claim sin federal court and the court takes jurisdiction over your state law claims as well, then it will apply the law of the state when deciding those claims.

In addition, recent studies have shown that because of a very demanding standard in federal court, many employment discrimination claims are being dismissed at summary judgment. On average, only 15 percent of federal court plain tiffs won their employment discrimination claims, compared to an average win rate of 51 percent for other types of claims. Therefore, depending on your state, it may be more beneficial for you to file your lawsuit in your state court.

Furthermore, while you probably do not have any control over which jurisdiction you will file your claim in (usually your claim is filed where the action a rose, which is typically your place of employment), there are important differences between courts. For example, the Fourth Circuit—which covers Virginia, Maryland, North Carolina, South Carolina, and West Virginia—has a reputation for being very conservative and often over turning large discrimination verdicts. However, the Ninth Circuit—encompassing Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington—is very liberal and often upholds large jury verdicts, and has more case law that is favorable to plain tiffs.

Additionally, deciding what local court to bring your claim in is very important as well, especially if you have the option of bringing your claim in more than one court. For example, the US District Court for the Eastern District of Virginia in Alexandria is called the “rocket docket” because it likes to move cases in and out quickly and often disposes of cases on summary judgment. Therefore, if you need a longer time to build up evidence or prepare your case and you have the opportunity to go to another court, that may be a good option for you. Each court, and even each judge, is very unique in how it rules, and a good local attorney who has practiced in those courts will be able to advise you on the reputation of your local court system. If you are able to proceed only in one court, your lawyer will advise you on how to manage the difficulties or benefits that a specific court may offer.

A Word About Juries

Very few cases—particularly civil cases—actually make it to a jury. They often get dismissed or settle. If you Google the “vanishing jury trial,” you’ll find a number of articles.

I’ve learned some surprising things about juries over the years. Here are just a few.

Jurors sometimes decide cases by the time the opening is over. TV shows and movies love the closing argument. How many times have you seen a lawyer on the silver screen making an impassioned closing argument before an enthralled jury? Lawyers dream of it, too. But, according to most social scientists, the truth is that jurors come to any case with their own set of conscious and unconscious biases that predispose them to view a case in a certain way. Jurors, like all humans, rely on this set of values and view points to make snap judgments. This means that, in a trial, a juror will often reach a conclusion about the verdict by the end of opening statements. It doesn’t matter how tear-inducing your closing argument is: the case is over long before you get there.

I do not mean to say that jurors take their obligation slightly. When I first started trying cases—having read too many articles about run away juries and ridiculous verdicts—I had low expectations of jurors. Tomy surprise, however, almost all the jurors I was able to speak to (judges often asked willing jurors to stay after trial to talk to lawyers) took their obligations very seriously. They pored over fact sand struggled with jury instructions.

This doesn’t mean that they considered important the same things I thought they would. That is one of the wild cards about juries. They might latch on to something that was not even on the lawyer’s radar screen. In one of my first trials as a prosecutor, there was testimony that the officers cursed at the defendant as they chased him. This case involved a “jump out” in a public housing are a plagued with open-air drug dealing. It did not occur to me that this would be important: it wasn’t what a lawyer would call a necessary “element” of the offense, and the defendant was caught with seventeen zips of crack in his pocket. This wouldn’t matter, or so I thought, so I didn’t address the foul language. I later learned, after a not-guilty verdict, that a number of elderly jurors found this language very troubling. They thought that an officer who used such language would—as the defense argued—be willing to plant drugs on the defendant. In another case, I found out that jurors struggled in deliberations with whether a police cruiser was the same thing as a patrol car. I got a conviction in that case.

Even if unpredictable, jurors try hard to do the right thing. People do their best to be fair. You can just never predict what logic the group will use to reach a decision.

Mock Trial

Recently, I had an experience that brought home the truth that people make up their minds quickly. Earlier this year, I participated in a mock trial that involved high school students as jurors. The mock trial involved a civil case. The plain tiff was the widow of a man who died in a car accident and was suing an insurance company. The insurance company claimed that the man killed himself. The insurance policy contained a provision that let the insurance company off the hook if the policy holder committed suicide. Some facts in the case seemed to indicate that the husband and father intended to kill himself so that his family could get the multimillion-dollar policy. But there were some tear-jerking facts, too. For instance, the man was a father of two, and his wife had just given birth to a third child a week before his death. So, the stage was set. Are you more likely to believe insurance companies are evil and looking for away to save money? Or do you take a hard-nosed look at the facts and decide that a deal’s a deal: if he killed himself, then there should be no payout?

As lawyers, we set about preparing our case by worrying over details of witness examination, introducing evidence, and, of course, giving closings. There were dozens of teams of lawyers, and we all tried at least one case over the course of two days before juries of high school students.

Now, you might think high school students aren’t the best example (unless you are one). But recall that juries are made up of all kinds of people, some who maybe just out of high school, and many who didn’t even make it through. So, high school students, particularly diligent ones like these, are not a bad approximation of most juries.

We videotaped the jury deliberations and talked to the students afterward. One of the questions we asked the jurors was at what point in the proceeding they reached a decision. Now, an important thing to recall about this mock trial and question is that, unlike real life, the jurors had no incentive to tell us what they think they are “supposed” tosay.Nojurorswanttoadmit—eventothemselves—thattheymadeuptheirmindinthefirst fifteen minutes of the case. Here, there was no such restraint. What did we learn? Most jurors readily admitted that they made up their mind very early in the case. Some jurors even said they had done so when the judge read a summary of the case before the first lawyer even opened his or her mouth. “Oh, the insurance company denied payment? Those guys are never up to any good,” or a similar, but opposite reaction. None of the jurors were swayed by the closing arguments.

Jury Selection

While procedures vary from state to state, the basics of jury selection are the same. When a case is ready for trial, the judge calls for a panel of potential jurors. This group is called the “venire.” The judge and the lawyers then ask this group a series of questions designed to pick twelve (or sometimes six) jurors who can fairly decide the case. Individuals in the venire are called up until the jury and alternates a reselected. Some jurors can be “struck” for cause. These decisions are made by the judge. For instance, a juror who said she could never believe a police officer cannot be fair in a criminal trial. Each side also gets a number of peremptory challenges. That is, each side gets to strike jurors for any reason, as long as it is not discriminatory. For example, the defense team could not try to strike just black jurors. A litigant or the judge can stop jury selection to address a charge that one side is discriminating. This is called a Batson charge.

But out side of improper discrimination, a litigant can strike a juror for any reason. Got a bad feeling? Don’t like his shoes? Fine. An example of a proper peremptory strike would, in a criminal case, look like this: The pot entail juror, in response to aquestion from the judge about whether he has ever been involved in the criminal system, says that his house has been broken into three times over the past five years. Asked whether this affected how he viewed the police, he says, “Well, they never caught anybody. That frustrated me. At least they tried, I guess.” The judge asks whether he can, despite this experience, be fair to a case involving witnesses that are police officers. The potential juror says, “I think so. I’m sure I can.” The judge will not strike this juror for cause. But a prosecutor might well think to herself: He says he can be fair. Maybe he means it. But he’s had a bad experience with the police. That might affect his view in a close case. I’m going to strike him.

Jury “Deselection”

Some say that jury selection is actually the incorrect term, given that neither party actually gets to “select” the jury. The best each side can do is use its peremptory strikes strategically and judiciously. Peremptory strikes are limited. A lawyer can’t strike with impunity. And there is a fair amount of chance involved. A venire panel is selected randomly. It is possible that you could have a bad run of luck and the first six panel members might appear hostile to your side (but not hostile enough for the judge to strike for cause). In that case, you might have to burn through your strikes early, only to find that the other half of the panel is even worse for your side. There is a fair amount of guess work involved in this procedure.

In the District of Columbia Superior Court, where I tried most of my jury cases, potential jurors are called up and questioned by the judge, with lawyers on each side. After the judge asks a question or two, each side gets a very limited option to follow up. Judges, wanting to move proceedings along, don’t let lawyers question jurors for long.

Once there are fourteen jurors in the jury box (twelve, plus two alternates), each side is allowed to exercise two strikes or to pass. After around of strikes, the process starts over. This goes on until the strikes are exhausted. In almost all my cases, I had jurors I believed might or might not be good for my case. But I had to predict whether that person might be better than a panelist who would rotate in to the box if I exercised a strike.

For instance, as a prosecutor, I might get someone on the jury who had a bad experience with the police. If given my druthers, I’d strike that person. But I might decide not to exercise that strike if I looked out into the panel and saw a male with a green Mohawk and a tattoo that reads: DOWN WITH THE MAN. I have to make a decision then about the best of what may be bad options. If I have one more strike, I can use it and get the Mohawk guy. Now, the truth is that I know nothing about either of these people. Maybe I’m prosecuting a drug case and Mohawk guy is really in the seminary with a passionate belief that drugs are tearing apart the fabric of our society. As a lawyer, the most I can do is “deselect” the jury in the best way to maximize my chances of success.