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Tuesday, September 08, 2009
Inside the mind of a veteran juror
Panels aren't swayed by likability, histrionics or emotion—but they want to know more
 
Kevin Salwen was a writer and editor for the Wall Street Journal for 18 years. His new book, “The Power of Half: One Family's Decision to Stop Taking and Start Giving Back” (Houghton Mifflin), written with his daughter, Hannah, comes out in February.

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I must be le roi of the voir dire.

Journalists have a reputation of getting bounced from juries, but each of the three times I have made it to the courtroom, the lawyers and the judge accepted me.

Take, for instance, jury selection at Fulton County State Court in August. The case centered on irresponsible driving. During the questioning, I conceded that my mother had been tragically killed after she was hit by a car eight months earlier. I was drafted anyway.

Not that I mind. I'll fess up that I love jury duty—or, more specifically, I love being a juror and serving as a tool of justice.

My experiences in the jury box might provide a perspective useful to those in the legal profession. And I'll offer a few morsels of counsel to you counselors out there.

But first, indulge me in a couple of yarns.

I was in my mid-20s when I first had to show up for jury duty in New York. I never left the waiting room that day, watching potential juror after potential juror march into courtrooms for their moment in the voir dire sun. It wasn't a total loss, though: I sat two seats away from Larry Kert, the original Tony in the Broadway production of “West Side Story.” For more than an hour, I debated about approaching him, or even asking him to sing “Maria.” I never got up the nerve.

Two years later, still in New York, I was chosen as a juror in the case of the attempted murder of a police officer. The trial had many wonderful twists. There was the reputationally challenged star witness who was tasting heroin in his car when the shooting occurred. We also had a holdout juror who decided the defendant was framed in a police conspiracy. When the Henry Fonda wannabe finally conceded the shooter's guilt, our jury became trapped for 90 minutes by a broken lock in the deliberation room door.

Somehow, I didn't get another jury summons until a few years ago, here in Atlanta. This time I was chosen for a complicated real estate dispute. There was no shortage of moving parts to this case, which featured a corporate takeover that the defense claimed nullified the contract. But the jury—with yours truly as foreman—was smart enough to recognize that at its core this case focused on the “intent of the law” versus the “letter of the law.”

Fast forward to my most recent case, which for brevity's sake I'll refer to as the ambulance chaser versus the semi-irresponsible cop. In short, the plaintiff pulled out of a church driveway, didn't see the speeding police car chasing down a burglar and got T-boned by the officer. She claimed the officer failed to exercise proper care, a misstep that caused her physical injuries and memory loss. She sought compensation; he countered that he was doing his job. Who's right? Who's wrong?

After the first day of the plaintiff's witnesses, one juror, Dan, told me, “Well, this shouldn't take very long for us to decide.”

I laughed. “It's rarely as easy as you think,” I replied. One big thing I've learned—both as a juror and a journalist—is that a dozen people rarely hear the same things. Their common experience is hardly common; in fact, it tends to derive directly from their individualized backgrounds.

And that gets me back to why I love jury duty. Most of us spend the lion's share of our time in our bubble, selecting our friends and colleagues and social interactions. For instance, in thinking about the case, I realized I don't have a single close friend who never finished high school. But on this latest jury, I got to spend three full days with a retired Pepsi truck driver who just about couldn't read; certainly the 12-page jury charge was well past his ability.

Beyond him, our jury had a former prisons employee who believed that most public-safety officers were power mad (influencing how they drive). On the other end of the spectrum, we had a Fulton County teacher who believed that police officers are marvelously well trained—and who held the deepest respect for authority I had ever seen. We had a technology sales rep, a Lowe's floor manager, a Walgreen's pharmacy assistant. We were, in short, a melting pot of experience and education.

For the first two days, when we couldn't discuss the case, we laughed about how much the lawyers sucked up to us, their overly gratuitous fawning becoming a parody at times. We weren't just jurors, we quipped, we were saints for agreeing to be part of this case. At other times, we wondered to each other what the judge was reading on her laptop, whether she was searching Travelocity for a great new trip or playing Solitaire.

When Judge Susan E. Edlein read us our charge at the beginning of Day Three, we already subconsciously had filtered the facts through our personal prisms. Dan had volunteered to be foreman the day before, and we figured if he wanted it that badly he could have the job. (I joked to friends that I was stepping up my campaign for foreman and that I was considering “going negative” against Dan and the other 10 jurors.)

For the next seven-plus hours, we parsed the details of the case, stared at evidence photos, compared witness testimony, critiqued sloppy police work and dissected fact after fact. This being Georgia, we decided there was more than one “proximate cause” that triggered the accident—the ambulance chaser's client was mostly in the wrong (she entered the road without yielding right of way) but the police officer failed to use as much “due regard” as he should have by speeding down the road. In the end, we decided the cop was 10 percent of the problem, with the injured woman the other 90 percent. Our award to her: $80,000, a small fraction of what her lawyer had sought.

This jury, like most, was a bit of a sausage factory—ugly to watch, but ending up in a good place. We arrived, I'm convinced, at a good compromise answer.

So, what can I conclude?

• Somehow the process works. The juries that I've been on have refused to be swayed by the likability of the attorneys, histrionics during the trial process or even emotion. On that last point, people are caring but also able to put that aside to get to the right legal answer, especially when the judge's charge is clear.

• We always wish we knew more. For instance, in this case, the fact that insurance was never addressed frustrated us. If the plaintiff already had her medical bills covered, should we award for them? Who would pay for any damages, we wondered, the county or the officer? Trying to anticipate those questions might help. (We learned later—when Judge Edlein stopped into the jury room after the case—that insurance can't be entered into evidence. Who knew? And why is that rational?)

• I'm impressed as heck by judges. In every case I've been involved with, the judge has taken the time to make sure the jury feels appreciated, knows its role and has the right tools. Sometimes simpler jury charges might be in order, though. Clarity is crucial for all 12 members of the jury.

All in all, I'm eager to go back. As folks would say on “Let's Make a Deal,” “Pick me, Monty.”

Kevin Salwen was a writer and editor for the Wall Street Journal for 18 years. His new book, “The Power of Half: One Family's Decision to Stop Taking and Start Giving Back” (Houghton Mifflin), written with his daughter, Hannah, comes out in February.

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