I try business cases for a living. A trial is, boiled down to its essence, a chance to tell your client’s story, in a relatively short period of time, to a captive audience that for the most part has no legal training. The story you tell is usually backed up by a limited number of exhibits and graphics that hopefully underscore your theme. Except if you get a legal professional or two on the jury, the jury’s entire legal training consists of twenty minutes at the end where the judge reads jury instructions in a boring monotone. I spent three years in law school and almost thirty years in practice figuring out how to apply facts to legal standards. How juries do this with twenty minutes of training is an endless source of fascination for me.
Trials involve human drama, including all of the strengths and foibles of the parties, witnesses and jurors. My impression is that many jurors remain free of bias, pay close attention to the evidence and do a pretty good job applying the jury instructions. Some jurors may go with their biases — some informed, some uninformed and ugly. A few jurors are asleep or look to draft on the opinions of the more involved jurors.
To a degree lawyers get to question and reject potential jurors before the trial commences. Who do we, as lawyers, want on juries for a business trial?
I don’t try a single type of case, nor do I represent only the plaintiff or the defense. I’ve represented the little guy against a big interest, I’ve defended companies and I’ve handled cases between two businesses where I don’t perceive any natural sympathies. So, I’m not always looking for a single type of juror. But, all of us who try cases work with our own perceptions and biases to try to pick juries that will tune into and sympathize with the story we intend to tell.
I don’t know whether a trial judge would let me ask who people are voting for, and it could be a dangerous question to ask, but this crazy election may be a good vehicle to break people down into broad categories and trying to predict how they might react to a particular story at trial.
If my story is that my client, a little guy, was wronged by a large concern, I want Sanders jurors. These are people who feel outed by the system. They believe that the “billionaire class” and “Wall Street” has created an economy rigged against most of us. If my trial theme is that a large interest disregarded and injured my Main Street client, I would think that these jurors would be naturally receptive.
If I am defending an established concern, and my theme is that the plaintiff is exaggerating his or her case in order to take a shot at a deep pocket, I want Bush or maybe Cruz jurors. People who may be a little older, who are part of the managerial or ownership class, who have faith in the free market system and who have worked hard for whatever wealth they may have accumulated are less likely to conclude that companies treat others unfairly. If the plaintiff’s evidence is not compelling, they may resent the apparent effort to obtain wealth through the court system that they have not obtained through their own efforts. These jurors would think cautiously before rending any award, particularly a large one.
Clinton jurors would, I think, be somewhere in between. My impression is that Clinton voters tend to be older, more pragmatic, have faith in the free market system and believe in incremental reform. These jurors may have more sympathy for a less powerful party but would have to be convinced by the evidence that the lesser party was necessarily abused by more powerful interests.
Trump jurors would be as much of a puzzlement to me as Trump voters have been to the political pundits. They’re voting Republican, but like Sanders voters they are angry at an establishment, in this case a do-nothing Republican Congress. I don’t think they are necessarily angry at business, as Trump touts his record as a “winner” in the rough and tumble business world. They’re angry at “the other” – illegal aliens, Muslims. Trump complains about being treated unfairly by the vested interests he threatens. Trump voters seem to be little guys themselves, but voting for a billionaire, so it is hard to see whether they would be pro- or anti-business. If my client was Latin or Muslim I would not want any Trump voters on the jury. Maybe Trump voters would like my story if my client was white, trying to “win” in the business world and frustrated by some kind of entrenched or corrupted interests. It is an ugly thing to say, but Trump’s candor has brought to the fore some ugly sentiments.
In the end, those of us who try cases will do what we can to discern people’s perceptions and biases and predict how that will affect their reaction to our client’s stories. It’s educated guesswork in the end. I’m grateful for all who fulfill their civic duties to serve on juries, and look forward to learning more about how they decide cases.