DizRotus Posted July 20, 2016 Share Posted July 20, 2016 (edited) This question is directed to Travis, other attorneys and others. Is it legal malpractice to include an attorney on a jury? IMO the answer is YES. For about the fifth time I've been subpoenaed for jury duty, have but yet to actually serve. Turning 70 in 2.5 years will allow me to opt out of jury service. As a "recovering attorney" and former prosecutor, if I were the attorney trying a case, I would not want me on the jury. There is too much danger that you would be trying your case to the attorney on the panel and that the others would look to the attorney amongst them for direction. The last time I was excused by counsel for the defendant in an OUIL case. He asked me if I had tried OUIL cases as a prosecutor. I replied, "Many." He asked if I got convictions in all cases. I replied, "No." He asked if I felt the not guilty verdicts were wrong. I replied, "Not necessarily." He thanked and excused me. The reality is that, as an attorney, I feel I can more easily distinguish between "not guilty" and innocent. The fact that my opinion might be that the defendant did that with which he or she is charged would not cause me to hesitate to vote not guilty if the state failed to meet its burden of proof. What do you think? Edited July 22, 2016 by DizRotus 1 Quote Link to comment Share on other sites More sharing options...
Jeff Matthews Posted July 20, 2016 Share Posted July 20, 2016 (edited) What do you think? I'll chime in. I have had a very limited smattering of criminal cases in my career, and for almost all of them, I was impressed at how defensible so many criminal cases can actually be. To some extent, my pleasant experience might very well be because I mostly got to cherry-pick and sent the hard ones on to somebody else. And I could certainly defend a civil case for legal malpractice if the fee is right, so I'm no so sure how I feel about whether not striking an attorney is legal malpractice. What if, for example, your side overheard the other side whisper they were going to strike the guy? Do you waste a valuable strike after hearing something like that? Edited July 20, 2016 by Jeff Matthews Quote Link to comment Share on other sites More sharing options...
Max2 Posted July 20, 2016 Share Posted July 20, 2016 Here, they won't take you if you are affiliated in the Insurance sector. Quote Link to comment Share on other sites More sharing options...
DrWho Posted July 20, 2016 Share Posted July 20, 2016 What is the legal/philosophical justification for having trial by jury in the first place? Or at least what is it they teach in law school? I think there can be shortcomings with anyone that ends up on the jury, but at the same time how much do we want our legal body to control who ends up on the jury and who doesn't? To be honest, I think I'm more concerned about ignorance than I am of poor moral character. The thing about moral character is that there is no system in the world that can prevent it, but ignorance is just plain dangerous. I think I'd rather have some people knowledgeable about the law on a jury than a jury full of idiots....especially if it was my neck on the line and I knew I was innocent. Quote Link to comment Share on other sites More sharing options...
oldtimer Posted July 20, 2016 Share Posted July 20, 2016 Gee grasshopper...think of it this way: Judges are either elected or appointed. That means if you don't want a jury you either trust someone elected by the knowledgeable public or the equally knowledgeable politician elected by that public you trust so much. Just put the power in the hands of one instead of at least a dozen or so. You know, like the English did before we went independent on them. Quote Link to comment Share on other sites More sharing options...
Jeff Matthews Posted July 20, 2016 Share Posted July 20, 2016 What is the legal/philosophical justification for having trial by jury in the first place? Or at least what is it they teach in law school? I think there can be shortcomings with anyone that ends up on the jury, but at the same time how much do we want our legal body to control who ends up on the jury and who doesn't? To be honest, I think I'm more concerned about ignorance than I am of poor moral character. The thing about moral character is that there is no system in the world that can prevent it, but ignorance is just plain dangerous. I think I'd rather have some people knowledgeable about the law on a jury than a jury full of idiots....especially if it was my neck on the line and I knew I was innocent. We have a jury system to promote democracy and avoid tyranny. If the king's judges can rule on your fate, corruption will abound. "A jury of your peers" essentially allows you to escape the wrath of the king for pissing off his daughter. 3 Quote Link to comment Share on other sites More sharing options...
oldtimer Posted July 20, 2016 Share Posted July 20, 2016 LOL Jeff. Almost simultaneous posts. Remember that demarcation? Are we getting closer? 1 Quote Link to comment Share on other sites More sharing options...
Jeff Matthews Posted July 20, 2016 Share Posted July 20, 2016 LOL Jeff. Almost simultaneous posts. Remember that demarcation? Are we getting closer? At times, I think we talk past one another, but I've always felt we were kind of "already there." Great wit is often a source of confusion. 1 Quote Link to comment Share on other sites More sharing options...
DrWho Posted July 20, 2016 Share Posted July 20, 2016 So why aren't attorneys considered part of my peer group? Quote Link to comment Share on other sites More sharing options...
oldtimer Posted July 20, 2016 Share Posted July 20, 2016 So why aren't attorneys considered part of my peer group? Too many quips for that one. The straight talk is that they are, unless your attorney doesn't want them on the jury. Quote Link to comment Share on other sites More sharing options...
wvu80 Posted July 20, 2016 Share Posted July 20, 2016 Is it legal malpractice to include an attorney on a jury? IMO the answer is YES. Hmmm. I'd like to bifurcate those issues, counselor. 1. Is it malpractice to have an attorney on the jury? Malpractice by whom? Both the prosecution and defense have an opportunity to dismiss the attorney, so my answer would be "no." And just in case, malpractice by the attorney serving? Again, I would think "no." He's not being compensated for his professional services, and he didn't seek out the opportunity. 2. Second issue: Speaking to you personally Diz, do you consider serving on a jury a DUTY or a PRIVILEGE? If it's a duty and you have concerns about conflict of interest then I'm sure you easily know how to answer questions that would get you disqualified. If you think it's a PRIVILEGE, then I say go ahead and serve and allow the pros/defense let you serve as they determine best from their professional view. I personally don't like the idea of attorneys serving on juries because despite their obvious superior knowledge of law, they also carry with them personal biases and prejudices, and I feel that will give them greater influence over the rest of the jurors. I like the concept of 12 equal opinions, naive as an idea as that is. 1 Quote Link to comment Share on other sites More sharing options...
Jeff Matthews Posted July 20, 2016 Share Posted July 20, 2016 So why aren't attorneys considered part of my peer group? Because we lawyers don't want them there. We pick juries to have more than one person decide the case. Most jurors are not versed in legal jargon and are a bit intimidated by it. Lawyers are "specially" trained to know certain things about "the law" which just don't appear in those plain-vanilla jury charges. Before you know it, a well-versed attorney on a jury will be running the whole show while all the other jurors just follow his/her lead. In that case, you might as well just try the case to a single juror and flip a coin. Putting several people on a jury tends to insure less whimsical decision-making and a greater depth of "life's experience," whatever that is. 2 Quote Link to comment Share on other sites More sharing options...
Coytee Posted July 20, 2016 Share Posted July 20, 2016 So why aren't attorneys considered part of my peer group? Would you instead, prefer a jury of all engineers? Quote Link to comment Share on other sites More sharing options...
Moderators Travis In Austin Posted July 20, 2016 Moderators Share Posted July 20, 2016 So why aren't attorneys considered part of my peer group? Would you instead, prefer a jury of all engineers? Back when I mostly did criminal defense and DWIs, my best jurrors were EEs in breath test cases. Quote Link to comment Share on other sites More sharing options...
DizRotus Posted July 20, 2016 Author Share Posted July 20, 2016 IMO, jury duty is both a privilege and a duty. My personal problem is not an aversion to serving, but the waste of time to report repeatedly only to be excused because the trial attorneys are reluctant to have an attorney on the jury. That experience prompted me to pose the question regarding whether leaving an attorney on a jury could rise to the level of legal malpractice on the part of the trial attorneys. As someone who defended legal malpractice cases, as well as medical malpractice cases, it might be a poor strategy to not strike an attorney juror, but it is not automatically legal malpractice. As a trial attorney, I would still be uncomfortable with an attorney on the jury. In my experience, jurors take their responsibility very seriously, as would I. FWIW, I do not see conflict of interest as an issue. 1 Quote Link to comment Share on other sites More sharing options...
Moderators Travis In Austin Posted July 20, 2016 Moderators Share Posted July 20, 2016 So why aren't attorneys considered part of my peer group? Because we lawyers don't want them there. We pick juries to have more than one person decide the case. Most jurors are not versed in legal jargon and are a bit intimidated by it. Lawyers are "specially" trained to know certain things about "the law" which just don't appear in those plain-vanilla jury charges. Before you know it, a well-versed attorney on a jury will be running the whole show while all the other jurors just follow his/her lead. In that case, you might as well just try the case to a single juror and flip a coin. Putting several people on a jury tends to insure less whimsical decision-making and a greater depth of "life's experience," whatever that is. I agree with this entirely. Unpicking (which is really what we do, unpick a jury) is completely different for civil and criminal cases. There isn't a one size fits all for any particular type of case. When the client is able I have always utilized a jury consultant like Robert Herschorn. If they can't afford it I do it in other ways on a shoestring. It is probably the most important single part of a trial. I have left a few attorneys on jurys with good results. When it comes down to it and I am on the fence I go with my gut. That is all I know about jury selection. Travis 1 Quote Link to comment Share on other sites More sharing options...
wvu80 Posted July 20, 2016 Share Posted July 20, 2016 (edited) So why aren't attorneys considered part of my peer group? Would you instead, prefer a jury of all engineers? The only thing a jury of 12 lawyers could agree on is that all the other lawyers are wrong. Edited July 20, 2016 by wvu80 2 Quote Link to comment Share on other sites More sharing options...
Moderators Travis In Austin Posted July 20, 2016 Moderators Share Posted July 20, 2016 This question is directed to Travis and any other attorneys. Is it legal malpractice to include an attorney on a jury? IMO the answer is YES. For about the fifth time I've been subpoenaed for jury duty, have but yet to actually serve. Turning 70 in 2.5 years will allow me to opt out of jury service. As a "recovering attorney" and former prosecutor, if I were the attorney trying a case, I would not want me on the jury. There is too much danger that you would be trying your case to the attorney on the panel and that the others would look to the attorney amongst them for direction. The last time I was excused by counsel for the defendant in an OUIL case. He asked me if I had tried OUIL cases as a prosecutor. I replied, "Many." He asked if I got convictions in all cases. I replied, "No." He asked if I felt the not guilty verdicts were wrong. I replied, "Not necessarily." He thanked and excused me. The reality is that, as an attorney, I feel I can more easily distinguish between "not guilty" and innocent. The fact that my opinion might be that the defendant did that with which he or she is charged would not cause me to hesitate to vote not guilty if the state failed to meet its burden of proof. What do you think? I think it would depend on the case. I think there would be some cases that I would leave you on, others no way. I would have, at a minimum, asked you more questions to educate other panel members. Things about standards of proof, why you were not upset with NG verdict, scientific testing, etc. 1 Quote Link to comment Share on other sites More sharing options...
oldtimer Posted July 20, 2016 Share Posted July 20, 2016 The only thing a jury of 12 lawyers could agree on is that all the other lawyers are wrong. I beg to differ. The only thing they might agree upon is the proper fee. 1 Quote Link to comment Share on other sites More sharing options...
wvu80 Posted July 20, 2016 Share Posted July 20, 2016 I beg to differ. The only thing they might agree upon is the proper fee. What are you, a lawyer??? No, no, I have to take that back. I shouldn't have called you a bad name. Quote Link to comment Share on other sites More sharing options...
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