BARD To Bard

A Trial Lawyer’s Perspective: The Wone Civil Trial & Shakespeare

Our thanks to regular reader Bruce for today’s guest post.  An attorney himself and noted contrarian on this case and evidence, Bruce talks about what to expect at the civil trial including the lawyerly theatrics.

“All the world’s a stage, and all the men and women merely players: They have their exits and their entrances;”  -William Shakespeare (from As You Like It)

Bad Craziness at the Bar

Bard Craziness

Most people don’t know that a court trial (like the up-coming civil case by Mrs. Wone against the Swann 3) is very scripted, much like a play. 

Juries usually don’t know this, and we, as outside viewers of the day to day happenings in a trial, aren’t aware of this either.  But the attorneys and the judge know well that what happens at trial is very comparable to theater.

While surprises can and do happen at trials, surprises happen much less often than you might suspect, and they are usually attributable to attorney error or a witness not following his or her attorney’s advice.

A witness breaking down on the stand and yelling “I did it!” is mostly confined to the dramatics presented in TV shows, movies and live theater, not civil jury trials.  Don’t expect that kind of theatrics at the Wone civil trial.

There are, in my view, two primary reasons for the “theater-like” quality of civil jury trials:  (1) the fact that attorneys are extremely “risk adverse,” and (2) the overwhelming use of depositions in the discovery phase of any civil case.

Attorneys are risk adverse.   Every trial, no matter how small or important, involves “high stakes” to the participants.  No lawyer likes to lose a case.  The parties themselves are generally at arms over even small disputes that end up in a trial – it is just human nature.

In the Wone case in particular, “high stakes” come naturally, just from the facts that Mrs. Wone is asking for $20 million, the allegations contain accusations of the Swann 3’s involvement in the death of Robert Wone, and the “scarlet letter” of a liability judgment and collection attempts will last for many years against the Swann 3 if they, or any of them, are found liable at trial. 

“A trial is theater. It is a performance.  The attorneys, clients, witnesses and judge are the actors, and the jury is the audience.  The star of the show will vary with each trial and is largely a function of trial strategy.” 
 -the Trial Tips Forum  (Trial Tips For Trial Lawyers 2009)  

Most trials are centered on parties’ and witnesses’ testimony from the witness stand.  Law students who take “trial advocacy” and “evidence” classes are usually instructed on a Golden Rule:  Do not ask anyone on the witness stand a question to which the questioning attorney does not already know the answer.  Stories are legion of that “one question too many” off the script to someone on the witness stand that results in an answer ruining the case for the client of the questioning attorney.  And it is a real temptation for the attorneys to ask that brilliant question that comes to him or her, usually right at the end of the witnesses’ cross-examination.  But a reckless attorney is of no value to a client. 

So how can an attorney keep “on script” in questioning witnesses?

Depositions.  Depositions are the most used of the “discovery tools” available to attorneys in preparing a case for trial, and are the primary reason that trials are like plays.  No judge will allow a witness to take the stand at trial without allowing the opposing counsel to take the deposition of that witness beforehand.  Depositions are the “meat and potatoes” of the work done by attorneys prior to trial. 

There are other “discovery tools” available, including interrogatories (written questions to the opposing party, demanding written answers), requests for production of documents (demands for the opposing party and opposing attorney to produce documents relevant to the case) and requests for admissions (written statements to the opposing party, with a demand that the opposing party admit, deny or set forth allowable reasons why the party cannot admit or deny the statements). 

These can and do produce valuable information.  But the problem with each of them is that responses are all written and/or overseen by the attorneys who represent the party to whom the discovery is directed, and simply signed by their client, allowing for the inclusion of legal objections and attorney “games” in  making non-responsive answers.

Depositions are different from the other “discovery tools” in that depositions result in the opposing party or witness, and not their attorneys, answering under oath questions put to them by the opposing attorney.  Usually, only all of the attorneys in the case, a court reporter (to record the proceeds in Q and A format), and the person whose deposition is being taken attend a deposition.  However, Mrs. Wone and any or all of the Swann 3 can attend depositions.  But not as participants, only as observers.

Depositions are taken away from the courthouse, usually in a conference room at the office of the attorney who has called for the deposition and is doing the questioning.  A party or a witness will likely have their own attorney sitting next to them, and those attorneys can place objections “on the record,” and stop the deposition if it becomes harassing.  But their client has to generally answer the questions presented, without interception or interference by their attorneys.

In preparing my client for a deposition, I of course go over with the client what questions to expect and help them formulate truthful answers to those anticipated questions.  But I first describe the procedure of depositions generally, and then I explain why the depositions are taken.  There are 3 primary reasons:

 (1) The opposing attorney wants to obtain all the facts and opinions which the  party or witness knows about the case.  The information provided may give  the opposing attorney new avenues to obtain further information;

 (2) The opposing attorney wants to “lock in” the party or witness to the facts and opinions they express at the deposition, so that the party or witness will not testify under oath differently at trial. If they do so, the opposing attorney will “impeach” their credibility on the witness stand in front of the jury, by referring to their testimony on the same subject at the deposition, also taken  under oath; and

 (3) The opposing attorney wants to “scope out” the witness or party during the deposition to determine if the witness will make a good presentation to the jury and whether the opposing attorney might get them to become emotional or uncontrollable at the trial.

At the trial, the opposing attorney will not (or should not) ask any question of the party or witness on the witness stand that attorneys did not ask during that party’s or witness’s deposition.  The party or witness studies carefully the transcript of their deposition before getting on the witness stand, so as not to answer any question differently than how they answered at the deposition, and such that they can’t  be “impeached” in front of the jury. 

So, as you can see, attorneys should not be cavalier about depositions and must prepare very carefully before looking the party or witness in the eye and asking their questions at a deposition.  The careful attorney representing the party or witness whose deposition is being taken will carefully prepare his or her client so that the client knows what to expect, and will make a good impression at the deposition.

There are other parts of a civil trial that are not really scripted in the same manner as court testimony from the witness stand, including “Opening Statements”(where each of the attorneys get to stand before the jury and tell the jury what they expect the jury to see and hear during the trial) and “Closing Arguments”(where the attorneys can essentially argue or present to the jury exactly why the jury should find in favor of their client), and maybe in the future we can have posts directed to those and other parts of a civil trial. 

But even the “Opening Statement” and “Closing Arguments, and those other parts of a trial can display similarities to an actor preparing for and performing a theatrical production.

Shakespeare was obviously not referring to court trials in his quote at the beginning of this post,  but, like with many of his words, his language easily applies to the modern world, and especially to the “playing out” of a civil trial. 

“Every trial is theater and every trial lawyer is a producer of a good, bad or indifferent play.”
 -Federal District Judge Simon H. Rifkind (S.D.N.Y.) (quote from 1949)

Programming Note:  The ‘Anacostia Dialogues’ resume later this week.

45 comments for “BARD To Bard

  1. Bill 2
    08/23/2010 at 12:08 PM

    Thanks, Bruce. You’ve spelled it out in a clear and concise way that non-lawyers can understand with ease. Good job!

  2. Michael
    08/23/2010 at 12:24 PM

    What were the three key elements of Shakespeare again… was it sex, drugs, and murder? =)

    • Bruce
      08/23/2010 at 1:36 PM

      Michael:

      Been a long time since Shakespeare classes in college, but pretty sure the three elements were: “sex, drugs and rock & roll.”

  3. Ness
    08/23/2010 at 4:43 PM

    Whether it comes down to hard work or theatrics, I wonder if the Covington team will put the time and effort into the civil case and do right by Robert.

    • Bruce
      08/23/2010 at 5:31 PM

      Ness:

      My bet is that they will do a great job for Mrs. Wone, no different than if she were a paying client (or one to which they would have the right to a percentage of the settlement or judgment).

      Attorneys have duties to their clients, which are independent of payment.

      Dan Webb and his firm Winston & Strawn in Chicago defended pro bono yet another fine corrupt Illinois governor (Ryan) a few years ago in a corruption trial in federal court in Chicago. Although they lost, it was not due to ineffective counsel. They did a very upstanding job.

      My recollection is that there was a newspaper article after the trial about their pro bono defense of Governor Ryan, and it said that the firm indicated it lost over $2 million in the defense. I’m sure they counted all attorney’s fees applied at their standard billing rates for those attorneys.

      It is a tremendous sacrifice for the Covington firm to do this. Each hour spent on the Wone case could be directed to matters with paying clients.

      They should be highly commended. And I would expect a very high class representation.

      • xxx
        08/23/2010 at 8:28 PM

        I would think Covington would have done a deal with Mrs. Wone — Covington collects X% of whatever amount is awarded. Typically, contingent fee deals are around 1/3 or greater. I have no idea what, if any, type of deal Covington has with Mrs. Wone, but if it is a typical 1/3 deal, if Mrs. Wone gets $20 million, Covington would get 1/3 of that. Not bad.

        • carolina
          08/23/2010 at 10:20 PM

          They’re representing her pro bono, unless you know something everyone else doesn’t?

          • Bea
            08/24/2010 at 6:59 AM

            You’re right, Carolina. Covington has publicly stated that it is handling the case pro bono.

            • AnnaZed
              08/24/2010 at 1:52 PM

              Yes, they have, and I am beginning to find it interesting to note the number of drive-by posts that appear in the comments of this blog blatantly mischaracterizing Covington’s pro-bono representation of Mrs. Wone as a cynical cash-grab. I particularly like the craven laziness of this poster calling himself “xxx” (all lower case, offering us only the slovenly and cowardly combo-platter). I’d call it pathetic if it weren’t so likely to be potentially effective.

              These posts pop up over and over again though all public information about the case clearly states that the firm’s participation is pro-bono. Nasty tactics I’d call it but similar to the bizarre, pointless and irrelevant “study” of semen migration in the rotting corpses of 60 day old bodies these kind of protestations can take on a life of their own and even metastasize into “facts” in the minds of some (some of whom may be jurors, and we know how jurors hate greedy law firms), as the posters are certainly calculating and are in some cases likely making a pretty good bet.

              • chilaw79
                08/25/2010 at 1:00 PM

                Many DC law firms do a great deal of pro bono work. It is a great way for large law firms to provide counseling and trial experience for associate lawyers.

                No charge generally is made for legal services in conjunction with a pro bono case (although the law firm may be eligible for legal fees under certain statutory provisions, such as various civil rights statutes). Many firms also do not require a plaintiff to reimburse for expenses related to the case.

                DC lawyers staff legal clinics, represent clients in criminal cases, and occasionally (as here) act as plaintiff’s counsel in a wrongful death case. I am proud of the work done by my fellow DC lawyers on a pro bono basis. I admire Covington and Patrick Regan’s firm for taking on this case since I think their efforts will be pivotal to a determination of whether there is sufficient evidence for a prosecution in criminal court on a homicide charge.

      • 08/23/2010 at 8:59 PM

        According to the most recent national survey of law firms by American Lawyer magazine, Covington ranked #7 in doing pro bono work. (In 2005, it rated #1.) This is not only determined by the quantity of pro bono work performed by a firm but also the percentage of its attorneys devoting at least 20 hours of pro bono work per year. And let’s also hear it for Regan, Zambri and Long which is bringing very relevant expertise to the task.

        http://www.law.com/jsp/tal/PubArticleTAL.jsp?id=1202431364830&slreturn=1&hbxlogin=1

        If one rationale for pro bono work is enhancing a firm’s public image, these two firms have won my vote!! (And if I ever get in trouble, BIG trouble, they would win my business…)

        • chilaw79
          08/25/2010 at 10:20 AM

          Patrick Regan will bring invaluable experience to the selection of jurors since he has tried many wrongful death cases in the DC Superior Court and other local courts. This provides exposure to certain nuances of local jury selection (and to the Superior Court judges) that Covington may not have.

          I think it will be a real challenge for defense counsel to paint the defendants in a sympathetic light.

  4. Carol
    08/23/2010 at 6:06 PM

    From a retired attorney (non-litigator), thanks for the superb review, Bruce!

  5. sixdegrees
    08/23/2010 at 6:12 PM

    Bruce, many thanks for this very informative overview!

  6. Rebecca
    08/23/2010 at 6:28 PM

    Bruce,

    Thanks for that description of the events that will precede the trial. You have really helped put me in the lawyer’s mind.

    In some ways it is really a shame that the trial will be so carefully planned and controlled. As an observer I want to see all of the raw evidence and hear the unrehearsed answers. Perhaps there are more facts that will be revealed in this trial. If so, they can only bring us closer to the truth. But so much of the truth is also in the nuances, the tone, the body language and the little bits of disparate and seemingly irrelevant information. If all of that can be all strung together with the evidence, then we will have something!

  7. 08/23/2010 at 6:44 PM

    I always think of the movie Chicago–when Richard Gere explains to Renee how a delicate dance is done in court when she tells him”I’m afraid”. Chris Darden ask OJ to put on that Glove–Johnny C was like he did know but looked at the glove and thought it was small but he didn’t know the outcome so he didn’ ask–the rest is history with Johnny C closing statement–IT doesn’t fit, It makes no sense if It doesn’t fit U must acquit

    • Bruce
      08/23/2010 at 7:36 PM

      Noaharc:

      All of those things are pretty exciting and enjoyable.

      Especially the glove “bit” in the OJ trial. I do remember that there was a lot of discussion about that after the trial, including whether Johnny C had thought about it or not, and was ready for it, if Chris Darden went “off script.”

      Chris Darden went WAY “off script,” was extremely reckless and was gambling with the state’s case against OJ. That “off script” moment may very well have changed the outcome of the case.

      Of course, if it had worked the way he wanted, Darden could have been a hero. It is very hard, especially for young attorneys, to not take those kind of risks at trial.

      You need some burns to make you appreciate fully what you are doing.

      And I would suggest that there may be extreme circumstances where you maybe should go “off script.” I mean, Golden Rules are made to be broken, aren’t they?

      • 08/23/2010 at 8:28 PM

        I don’t know if the following is on or off script, and certainly is not worthy of the Bard’s writings, but …. Bruce, thank you so much for your excellent service — both in this posting and your earlier ones. You have a gift for explaining complicated concepts clearly. Promise me you won’t go away again, mad or otherwise. One person hit you a REALLY low blow which was outrageous and should have been redacted. (I tried, believe me.) Be tough skinned; we do need you (and Bea, Chilaw, Kiki, Hoya Loya, etc.) because we’re going to be swimming in technical minutiae soon enough.

    • Emily
      08/24/2010 at 7:10 AM

      Coincidentally I recently read “How I helped O.J. get away with murder” by Mike Gilbert, who was O.J’s memorabilia agent. He claims that he was the one who suggested to O.J. that when he (O.J) stopped taking his arthritis medication his hands and knuckles swelled to twice their normal size. Gilbert thinks that O.J.’s lawyers did not know about this. The book is an interesting and plausible read.

  8. Clio
    08/23/2010 at 9:52 PM

    Thanks, dearest Bruce, but wasn’t it the Bard in his play Henry VI who wrote “first, let’s kill all the lawyers?” I’m sure William S., or whomever really wrote these “classics,” did not have Robert Wone in mind, of course, but he or she probably had witnessed Machiavelli’s version of Culuket (and his staccato answers at Anacostia.)

    And, tell me again, how is the courtroom being a stage a novel insight? And, wouldn’t lawyers obviously be natural playwrights or griots in shaping the stories that they wanted to tell? These seem to be truisms to me and, of course, money buys a better script and cast. That’s why Covington has the decided edge here, and there’s nothing “theatrical” about that fact. XO, Clio.

    • Bruce
      08/24/2010 at 12:52 PM

      Hi Clio:

      I certainly agree with you that the comparison between a civil trial and a play is not a “novel insight,” as you suggest. Just Google: “attorneys and theater” or “lawyers and actors,” and anyone can find a wealth of information on the topic. There have been books written on the topic, and many continuing legal education seminars run by actors and those in the theater, for trial attorneys.

      If I made any suggestion that I originated the idea, I am most certainly guilty of a hideous crime for which I must apologize. Hopefully, the quotes in the post would show that it is not a novel insight at all. I’m just not that good.

      As to whether it is a “truism,” I would beg to disagree. Most of my friends, and actually many clients, both not trained or experienced in the law, generally tend to think that trials are much more spontaneous than they are in reality, and few know that the reasons include that attorneys are “risk adverse,” and depositions are so highly relied upon at trial, and for what reasons.

      As mentioned by Gloria, above, WMRW is lucky to have many lawyers and a paralegal on the site, including Bea, Chilaw, Kiki, Hoya Loya, Cat, Deb and others (sorry if I did not mention you, no slight intended!)who can, and have, helped the many non-lawyers on the site through some tangled legal issues.

      I do not mean in any way to set myself up as the “lawyer in chief” on here. I am most certainly not, not only because I don’t want to be, but also because I don’t practice in DC.

      I think that it would be a good idea for all the lawyers and legal beagles that have the time on here to do some posts to help all of us understand the ins and outs of the Wone civil trial. I’m sure the editors would like that, and I would highly promote that we need different views and posters for the information.

      Some topics, although many have been touched upon before, for the “Law for Non-Lawyers” Wone Trial Series, might include:

      -How the case proceeds before the judge prior to the jury trial, i.e., monitoring and pushing discovery and setting hearings;

      -The Art of taking a good deposition;

      -motions in limine and pre-trial conferences immediately before trial;

      -Settlement and Insurance issues impacting the Wone trial (I don’t think we can separate those issues in this particular case)

      -jury selection (also called “voir dire”)– law, procedure and finesse;

      -Opening Statements: law, procedure and finesse;

      -Presentation of evidence during trial: Law, procedure and finesse;

      -The Art of Cross-Examination;

      -Law and reality regarding roles and behaviors of lawyers, juries and judges during trial;

      -Closing Arguments: law, procedure and finesse;

      -Jury Instructions from the judge;

      -The law and reality of how juries make their decisions;

      -Possible 5th Amendment issues regarding the Swann 3 (touched upon, but no detailed post yet)

      I would be interested if others have additional issues that you think should be included with those listed above, so that the list can be expanded.

      However, it is very important, I think, that this blog should not be turned into a “law forum,” and I would suggest that these legal items or posts not come up frequently; because this blog is about much more than “the law.”

      Further, all of this legal discussion is, of course, up to and determined by the editors, not the posters.

      Clio, I have never forgiven Shakespeare for his “kill all the lawyers” quote. Do you think he really meant it?

      • Clio
        08/24/2010 at 9:11 PM

        Well, Bruce, as you know — as a Virginia Cavalier, that Shakespeare quote was intended to be read by a villian, a person of low birth who had no respect for the law, moral tradition, or decency. Villians always get the best or bitchiest lines, then and now, and the Bard did not make an exception here. In general, then, Shakespeare actually saw lawyers as necessary evils againat the much greater abysses of mob rule and/or absolute monarchy, both of which placed people above the law.

        The biggest villian here, of course, is the elder Price, and his most memorable and despicable line has to be: “Isn’t he our friend?” Next would be his lines about Michael being the real criminal of the “family”.

  9. LegallyConfused
    08/23/2010 at 10:34 PM

    Bruce, thanks for the primer on the civil trial. Although I knew the importance of depositions, I had not connected the dots to the point where the witnesses or parties have to hew pretty close to the answers they have already given in their depositions, or risk having their testimony impeached.

    The timeline for the civil case makes more sense to me now that I understand the importance of Discovery and the taking of depositions.

    As a DC juror in two criminal cases, one we convicted, the other we acquitted, I also felt that both the prosecution and the defense had carefully scripted the questions that they asked the witnesses to answer. As a juror in both cases, I had to listen to the witnesses very closely. When we went to deliberate, I had more questions than answers. It was not until our deliberations that I was able to resolve some of the question marks I had.

    I have never served as a juror in a civil trial. Besides the lower standard of a preponderance of the evidence rather than BARD, is there much difference in the way the case is presented?

    Does the Plaintiff’s case get presented first as the Government prosecutors do in a criminal case, or are witnesses called from both sides as evidence is presented?

    Can the Plaintiff compel the defending parties to testify in a civil case?

    • Bea
      08/24/2010 at 7:23 AM

      Hey Confused, the presentation is very similar in a civil trial: plaintiff’s case, defense’s case, plaintiff’s rebuttal (limited). Plaintiff can compel the defendants to testify (and give depositions) but as ChiLaw has pointed out previously, it’s quite likely that each will refuse to answer on the grounds that it may incriminate them (5th Amendment). They were each acquitted of tampering/conspiracy/obstruction but murder charges were never brought – unlike the OJ trial in which OJ did have to answer because he’d been acquitted of murder. That said, in a civil trial if the defendants take the 5th, the jury may hold it against them – in criminal trials, the jury is instructed that a defendant’s decision NOT to testify CANNOT be held against them.

      Props to Bruce for the post. I’m sure he’ll agree that while it’s all theatre, Rebecca is also correct that the devil is in the details. Demeanor of the witnesses can’t be scripted, and because it’s “live” mistakes or surprises do occur (though not of the all-important smoking gun variety – these men won’t confess on the stand, and if, for example, someone “finds” the cameras, that’s likely to come up in depositions giving both sides an opportunity to figure out a strategy).

      We can expect the Plaintiff’s opening statement to explain exactly what evidence will be coming in and why it’s important. As an older litigator explained to me when I was very junior: first, you tell the jury what you want them to understand about what the evidence will be in the opening statement, then you give them the evidence promised, and in closing argument, you tell them how they should interpret it. In other words, tell them what you want them to “hear”, give them what was promised, and then tell them what and how to think to reach the verdict you want.

      Depositions in this case will be key. If, for example, one is deposing Sarah Morgan after deposing Tom & John, it’s much more difficult for her to evade/obfuscate. Just speculating here, but if Tom/John says (under penalty of perjury) that Sarah called and asked if she could come over just minutes before, that she was upset about something, then Sarah would be asked to explain that – and have her criminal trial testimony read back to her and explain any discrepancies which arise. Should she give testimony damaging to the defendants, the defense attorneys would grill her about whether she lied on the stand in the criminal trial/get personal with her about feeling “jilted” by the defendants, etc.

      Because there is no “live” Judge during depositions, in most instances, any “objections” are simply reserved and the witness goes ahead and answers (with the Judge later ruling, where necessary). In extraordinary circumstances, the attorney will “instruct the witness NOT to answer” – for example, each of the defendants is likely to refuse to answer any meaty question under the 5th. And possibly some not-so-meaty questions.

      • LegallyConfused
        08/24/2010 at 9:56 AM

        Thanks, Bea, for the additional clarifications about civil procedure, demeanor of the witnesses, and the use of depositions and prior testimony from the criminal trial. It does sound like more “rocks” can be looked under and overturned in the civil trial.

        And, thanks to all the other attorney posters on here who are giving the rest of us a free correspondence course on criminal and civil procedure. Not only does it help us to understand the particulars of the Wone case, but also, it is invaluable for us who are potential jurors in the future to better understand the legal process, and the judge’s instructions, when we are called upon to determine the facts.

        One personal comment about demeanor of the witnesses being a factor that I remember from my personal experience as a juror on a murder trial. One key prosecution witness had given some testimony that appeared to implicate one of the two defendants. During the course of his direct testimony two men entered the courtroom and sat where the witness and they could look right at each other.

        From that point on the witness appeared to have developed some form of amnesia, as he could not recall any of the details to which he had earlier so clearly testified.
        When we began deliberations, I would say most of the jurors had picked up on this 180 degree turn in this witness’ testimony. We also noted that the attorneys and the judge had several bench conferences when the “amnesia” developed.

        As it turned out, there was enough other evidence introduced to convict the one defendant of first degree murder BARD, and the other defendant of a lesser charge.
        I just mention it as an example of jurors picking up on other non-verbal relevant factors than the actual testimony. Our conclusion was that this prosecution witness had been intimidated by the presence of the two men, and wanted to stay alive on the streets that evening.

        • Hoya Loya
          08/24/2010 at 11:03 AM

          The witness wasn’t Frankie Pentangeli, was it?

          • Craig
            08/24/2010 at 11:11 AM

            Or “Frankie Five Angels” as he’s known around here.

          • LegallyConfused
            08/24/2010 at 11:38 AM

            Nope. This witness was an Antwone. The two men were probably enforcers in the defendant’s drug distribution gang.

            After the trial ended, I was watching my backside as I exited from Moultrie. I’m sure some of the other jurors shared my paranoia.

            • LegallyConfused
              08/24/2010 at 11:44 AM

              P.S. to Hoya Loya. Yes, I did get the “Godfather” reference.

              • Hoya Loya
                08/24/2010 at 12:26 PM

                Talk about life imitating art . . .

  10. susan
    08/23/2010 at 11:43 PM

    Thanks for today’s post, Bruce.

    Editors: Where is that crazy bard illustration from? Pls. don’t say it was in the The New Yorker……

  11. Emily
    08/24/2010 at 8:50 AM

    Another hard ask question for the lawyers. In what way do you think the civil trial will present stressors/surprises for the trouple that they haven’t encountered before in the criminal trial?

    • Michael
      08/24/2010 at 9:48 AM

      Nice try, Joe.

      • Emily
        08/24/2010 at 10:11 AM

        I’m not Joe, though I understand your suspicion, and, now with your response, I understand the idiocy of my question.

        OK, let’s try to take it back to general principles. To what extent are witnesses in a civil trial “compelled” to answer questions compared to a criminal trial?

  12. Rapt in MD
    08/24/2010 at 9:58 AM

    I enjoyed this post and I’m definitely going to try to sit in the gallery again when the new trial begins. Two years ago I sat on a jury in an attempted murder case. Both attorneys were passionate, theatrical and entertainingly sarcastic in their presentations. One of the lawyers convinced me who was innocent or guilty based on her performance. I held onto every word and I felt that I knew what happened the night of the crime.

    When I got up to go into deliberations, I knew where I stood and knew what I would be arguing for. However, 12 pages of judge’s instructions later, the impact of those theatrics went right out the window as each of us applied the instructions one by one. We tested each “if this, then that” scenario in the judge’s notes to us and wound up convicting the person on much, much lower charges than I would have thought. I have no doubt the performances in the Wone trial will be compelling and keep us on the edge of our seat, but it seems to me that once the rules/law are/is applied, that’s where the rubber meets the road.

    • denton
      08/24/2010 at 1:40 PM

      Bruce and the Eds – Many thanks for your “eye opening” forum to educate me and other non-lawyers re: the “fascinating” legal aspect of the Civil Trial process here. I also enjoy reading LegallyConfused’s and Rapt in MD’s true experiences sitting in the juror’s box.

      I, too, in May/June 2008, was picked a juror on a “wrongful death” civil case that lasted 5 weeks at Moultrie. 10 jurors (no alternate) out of 12 came up with one verdict. I and one other juror decided differently (that the Defendant, Washington Hospital Center, was guilty) to have led a patient died from medical negligence. In the end we submitted the Judge the majority votes – WHC was “not” guilty.

      The “one and ONLY” blood stain in the brain that the Defendant argued that they did not find during the treatment at WHC that led this patient paralyzed and died at the end – was something beyond proven by the Plaintiff (who had a burden to proof).

      Legal question to Bruce, or any civil lawyer posters here:

      What would you do, or what should any juror do in the future, if you find your decision is against other jurors when the court’s rules is asking for only “one” verdict?

      • Bruce
        08/24/2010 at 2:39 PM

        Denton:

        Great question at the end of your post! But not one for lawyers. Let’s hear from people on here that have been jurors (no one ever picks me for a jury….sigh).

        While not answering your question, this issue happens to be a “hot” one right now in Chicago. The delightful former governor Blaggo, now a TV star, just came out of a jury trial on corruption.

        He was only found guilty on one count (lying to the FBI), and all other (24?) counts against him and his brother (these two were the only defendants) ended up with a “hung” jury (they could not all agree on a guilty or not guilty verdict), and on a number of those “hung” counts (including the biggest—-whether Blaggo tried to sell the Obama U.S. senate seat) there was only one hold-out juror stopping a guilty verdict, all others voting for “guilty.”

        The press spoke to a number of the jurors and the one lone dissenting juror’s name and address has been given out by the press, but I believe that juror has not spoken publicly about it (at least I have not seen or heard that). A number of other jurors told the press about their frustrations with this one juror, but several expressed support for that lone juror, and said the juror was very quiet, thoughtful and intelligent, and took the charges very seriously.

        I personally hate it that the press can get the jurors’ names and go through this process. I think it makes it more likely that someone won’t hold out in the jury room in line with their true feelings, and I don’t think that any juror should have to face scrutiny of this kind after a verdict.

        So, can we hear from some former jurors about their experiences or thoughts, having been in juries, in answering Denton’s great question at the end of his post above? And what do you think, Denton?

        • denton
          08/24/2010 at 4:25 PM

          Bruce – I follow the Blaggo’s news too from DC here. It pauses me to think “How can a justice be served?” Jurors (I don’t know how often but sometimes, and they know it) have the power to change the outcome of the trial (God forgives me for saying it) like we have just heard from the Blaggo’s (and the OJ’s).

          I know we are on the new issue already but to lawyers, or anyone including past jurors, your answer to my question will hep:

          “What would you do, or what should any juror do in the future, if you find your decision is against other jurors when the court’s rules is asking for only “one” verdict?

          • Bruce
            08/24/2010 at 5:14 PM

            Denton:

            As a person, not as a lawyer, if I was on a jury and my determination was close to the “moral certainty” that the criminal judge talked about in her decision about the Swann 3, I think I would very likely stick to my guns, and possibly become the most hated person in the jury room.

            However, I would ask that all the others give me reasons to change my mind, and I would not close my mind to any argument.

            I think I could be a hold-out juror.

            I would think that my duty is not to the people on the jury, but to the parties in the case.

            If I thought for one minute that the majority had a bias or discriminatory basis for their conclusions, I would dig my heels in further.

            I would know that the stress would end at some point, and the judge would have to declare a “hung” jury.

            Now, if I came to a decision, but it was not based upon what I would call “moral certainty,” but something less, I would hope, and I think I would be, more pliable and subject to change.

            I would hold the lawyers and the evidence to the “preponderence of the evidence” standard in a civil trial and the “proof BARD” for a criminal trial.

            CONFESSION:

            Despite what I say above, I think it is hard to really know what you would do in these types of circumstances, and I think what I put above may be based upon some idealizations.

            What I say above is how I hope I would act, possibly idealized in my own screwy head, and how I think I would act, but who knows how one would act with all the pressures one would be under?

            You would get constant pressure from the other jurors, the uncomfortableness of the jury room (the Blaggo jury said it was way too warm in there, with no air moving), the pain of facing days with belligerent people who feel you are ignorant, the looks of people on a Friday afternoon who would have to come back on Monday, only because of you — who knows how I would really act.

            There are no rules or laws about how a jury must reach its decisions (or not reach them). The lawyers in closing argument may beg you to hold on to your principles and be the hold out if you must be.

            Yikes!

            Ok, others?

            • denton
              08/24/2010 at 5:36 PM

              Many thanks again, Bruce. You said it so nicely and I was that hold-out juror until … who wants to come back on Monday, the courtroom had a leak from the rain and the a/c was not working … blah … blah … blah, I yielded and “gave it to her (a woman Judge).

              • denton
                08/24/2010 at 5:43 PM

                … and I could not sleep for days thinking about the wife of the dead man, and the Plaintiff’s lawyers who was so convincing (to me) and they worked so hard to that point. I did not cry but just dragged myself to the point that I said “o.k. then, it was over” knowing that the wife had already started another law suit immediately after that verdict. Oh…well, the thing in the past.

                • LegallyConfused
                  08/24/2010 at 8:34 PM

                  I don’t know how I would proceed if I were the holdout on a jury.
                  If I thought the other jurors were biased or discriminatory, I would certainly not cave in to them.

                  I guess I would try to understand from each juror, his/her rational basis for his/her decision.
                  And then I would analyze my own process of coming to an opposite conclusion.

                  After that, if I thought my own reasoning was faulty, I would try to see where the common ground is amongst the jurors, and, decide if I could accept the consensus.

                  However, if I had the “moral certainty” that I was right, and the others were all wrong and non- persuasive, I would hope that I could hold my ground. Even if it ended in a hung jury.

                  But, I have not been in that position (i.e. a holdout) as a juror yet…..

                  • denton
                    08/24/2010 at 9:20 PM

                    LegallyConfused – Well said, I thank you. Lets just hope you don’t have to be in the “hold-out” position like I did. The hardest part of my final decision was to accept the consensus and started having doubt my own! (Something I still have to learn to live with it…oh, well….)

                    • susan
                      08/24/2010 at 11:20 PM

                      Dear Denton

                      I feel for you. I was one of two who hung a jury once. There is peer pressure to go with the group and yes, it would be nice to think the jurors aren’t concerned with getting out early, not serving another day, etc. but there are a lot of peoplee out there who couldn’t give a sh*t about justice being served. Sad but so true. If you haven’t, see 12 Angry Men. Made years ago still very contemporary and true to life.

                      You did what you could, Denton. Being one of two who hung a jury was hard. It must have been hard to be a potential lone hold out. I hope you get a chance to serve on a jury again and be strong and feel wiser from that bad experience.

  13. Rick
    08/24/2010 at 4:43 PM

    Thanks Bruce for your time and sharing you knowledge and experience…

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