Podcast - Part I: Reading the Jury

Dan Small: I'm delighted to welcome to The Trial Lawyer's Handbook podcast Paul Kiernan, a partner at Holland & Knight in Washington, D.C. Happens to be a fellow Harvard Law School graduate, but I won't hold that against him because he is both a brilliant trial lawyer and appellate advocate, but also the chairman of Holland & Knight's Public and Charitable Service department and in that capacity oversees literally hundreds of pro bono matters all across the country. So, Paul, welcome to The Trial Lawyer's Handbook podcast.

Paul Kiernan: Dan, thank you. It's a pleasure.

Dan Small: So let's jump right in. You recently won an interesting jury trial. Can you tell us just a little bit about it and some of the lessons learned?

Paul Kiernan: We represented a commercial real estate developer who got into a litigation lawsuit with somebody who was going to be an investor in the deal but didn't and then wound up suing, saying, I should have been in the deal and you unfairly cut me out. There were other issues, but that was the heart of it. And the case was tried in the District of Columbia Superior Court, the local trial court, in front of a jury. The judge seated eight jurors, and the trial went for eight days of testimony and argument, went to the jury on the morning of day nine. The jury was out for about an hour and a half and came back with a verdict in our favor.

Dan Small: That's great. So there were some issues there of people's impressions or making impressions, good or bad, to the jury. Tell us about that.

Paul Kiernan: You know, my view, Dan, is when you're a trial lawyer, you're on all the time. It's like you're starring in a one-person show. You're on all the time. The jury pays attention to everything you do. And the opposing party — and I'm not naming names here, — but the opposing party did some very odd things, in my view, in terms of the jury, in terms of how people were dressed, in terms of how people addressed issues in court. Our clients, my clients appeared and are extremely professional, businesslike, jacket, tie, paying attention, no reactions to things, just very straight ahead, businesslike and all that. The plaintiff on the other side was very demonstrative during the trial in front of the jury. Even cried at one point while sitting at counsel table while his lawyer was cross-examining a witness, repeated that crying in front of the stand. It did not work with the jury, ultimately. Indeed, I should share with you that after the trial was over, the judge told the jurors that if they wanted to talk to the lawyers, that was fine with the court. And I asked one of the jurors, "What did you all think of the crying?" And she laughed and she said, "No one bought it for a second."

Dan Small: That's a too rare, I think, opportunity that some districts allow lawyers to talk to jurors after a trial. I've learned an enormous amount a couple of times where that's happened. Have you had other trials where you've learned a lot from the jury after the case?

Paul Kiernan: I have, and usually it's interesting. Usually, you can identify fairly early on who the leaders are in the jury. And in my view, they're the people you should be talking to throughout the trial because they're the ones who may take the jury during deliberations where you want that person to go. And another case I had a few years ago, we got the opportunity to talk to a juror who was very insightful in terms of what worked and what didn't in terms of our trial, in terms of the other side's position. And as you say, it's an incredibly rare opportunity. If you think of yourself as being on stage, it's as if an actor can come down during the show and talk to the audience and say: What did you think of that last scene? And what should I do better? Or what could I have done differently? And it's just an enormous benefit if the court allows it. And obviously not all courts do and not all jurors want to talk to them.

I should share with you, I had a case a number of years ago in which neither party could figure out why the jury was out so long. It's a complicated case, but, you know, it boiled down to fairly simple issues. When their three days of deliberations were coming to an end, they finally came back with a verdict and the judge let us talk to the jurors, and both sides said, "What were you all talking about for three days?" Turns out the jurors had elected a priest as the foreman of the jury. And the priest didn't take a vote for three days because he wanted to basically hear from everybody about everything before the jurors even took a vote. Once they took a vote, it was over. But the priest-foreman lesson, don't make the priest the foreman.

Dan Small: I'll just tell you one story about a jury's reaction. I had it many years ago when I was a prosecutor, prosecuted a drugs and corruption racketeering case. Twelve defendants went to trial. There was one that [was] the lowest-level defendant, old man, really not a big deal one way or the other, but he was the only one to take the stand. And I cross-examined him for several hours. And through no particular skill of mine, pretty much destroyed him because he was telling such elaborate lies. And the jury came back, convicted everyone on every count except the old man. And when we talked to the jury afterwards, one of the jurors told me, "You know, Mr. Small, we thought about it a long time and we decided that what that old man needed was a good lickin'. And you gave it to him, and that was probably enough." The wisdom of Solomon.

Paul Kiernan: It is interesting, isn't it? You know, when you're in a trial, the jurors pay attention to everything you say and do and how you say it and do it. And I mean, from when you enter the building, when you come up the elevator, you don't know if you're on an elevator with a juror until they pick a jury. And so you're always on. Your clients are always on. And jurors pay attention to the clothes you wear, how you talk to each other, how you talk to the court, how you talk to them. And your goal ultimately in court is to become the trusted adviser to the jury. You want the jury to look at you saying, you know what the case is about, you know the rules, you know what the witnesses are saying, you got it, so I'm going to pay attention to what you say and not pay as much attention to what they are saying. And that's done by, it seems to me, it's done by little increments of trust that you build up over the course of the trial so that when you come to the closing and you say to the jurors: "Hey, when you get back to that jury room and you're looking at that questionnaire of how we're deciding the case, I want you to say yes to number one, yes to number two, no to number three, no to number four…" And walk them down through the jury verdict form. And what you want to see, as I just saw in this case, I just tried, if the jurors take out their pad and take out their pens and write down what you just told them they should do when they go back to the jury, that's where you're trying to go. And that happens, I think, by being respectful of the jury, not wasting their time. As you very well put in a recent podcast, winnowing down the case, getting to the heart of things and not wasting their time with a lot of peripheral stuff. Knowing the rules, knowing what the judge is going to do. And you're in charge. You should be in charge in the courtroom, and the jurors should be looking to you. When something comes up, you want them to look at you and say: "Well, he'll know what to do. He knows what the answer is."

Dan Small: You made a great point earlier about identifying the leader or leaders in the jury and trying to address them. Tell me a little bit more about that. How do you do that? Because, of course, you can't talk to the jury. How do you do that?

Paul Kiernan: You can't talk to them, but you can sure watch them. At this recent trial we just had, it was clear from the outset that it was a very sociable jury. They enjoyed talking with each other. They enjoyed interacting with each other. And it was clear who was helping stir the conversation. It's the person who leans over and says hello to the person in the next seat, it's the person who turns around and says good morning to that person. It's those people. And if you're watching the jury, it's pretty easy to tell who the leaders are. And you can also tell who the skeptics are, right? The ones sitting there with their arms folded and not really paying attention. They don't want to be there. That's OK. You may never get them, but if you have the leaders, they can pull the rest of the jury along.

And that's why I think all of us who try cases need to be much more conscious about watching the jury. We don't have to watch the witnesses. We know what the witness looks like. We don't have to watch the judge. The judge will talk if she has something to say. But we can watch the jury. How is the jury reacting to this witness or this document or what you just said or the question you just asked? Don't look at the witness. Look at the jury. And that gives you a lot of information about who's going to help direct the deliberations and the ultimate verdict in your favor.

Dan Small: That's great help and great inspiration. Thank you so much.