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The verdict is split on putting attorneys in the jury box

Author / Coordinator: By Barbara L. Jones
Minnesota Lawyer
April 2004

The goal of a trial lawyer is to control the courtroom, not let a rogue juror or outside influence destroy months or even years of preparation. But what happens to a litigator’s control of the courtroom if one of the jurors is a lawyer?

Minnesota Stat. sec. 593.31 states that all citizens should serve as jurors: “It is the policy of this state that all persons selected for jury service be selected at random from the broadest feasible cross section of the population of the area served by the court, and that all qualified citizens have the opportunity in accordance with this chapter and applicable court rules to be considered for jury service in this state, and that qualified citizens have an obligation to serve as jurors when summoned for that purpose.”

Rule 801 of the General Rules of Practice for the District Courts states the same public policy, but exempts sitting judges from jury duty. Rule 810 states that all automatic excuses or disqualifications from jury service are eliminated, except as provided in Rule 808. The rule defers from jury service candidates for elected office upon request.

Although lawyers are not excluded from jury duty, some local practitioners would not hesitate to challenge a potential juror who is an attorney.

Minneapolis lawyer Robert J. Beugen told Minnesota Lawyer, “I would never allow an attorney or even someone with legal training on to a jury panel. Typically you want a clean slate and not someone with preformed impressions. If I had an architectural case I wouldn’t want an architect. The function of the jury is to determine the facts and apply the law as the judge explains it to them. It’s for the judge to give the law. That’s what keeps the system pure.”

Prejudice, not profession

Lawyers in Minnesota have been on both sides of the jury box and their experiences have been as varied as their cases.

Minneapolis lawyer Marshall H. Tanick noted that lawyers tend to know each other and thus may sometimes be struck for cause, as Tanick himself was when he was called for jury duty.

But sometimes strikes for cause are unavailable and attorneys finding that their peremptory challenges were needed elsewhere have kept lawyers on the jury.

There should be no “absolutes” in jury selection, said attorney Peter W. Riley of Minneapolis. “I look for prejudice, not professions. I even like an insurance adjuster on a panel.”

Riley had lawyers on two juries in cases where the issue was damages, not liability. He didn’t believe the lawyers on the jury would be a hindrance in that case. “There were others I wanted off the panel more,” he added. In one case the lawyer worked for the city’s water department and fit Riley’s other criteria for jurors; in the other case, the lawyer was in collections. Neither lawyer dominated the jury, according to Riley.

St. Cloud attorney Kevin S. Carpenter, who represented the defense in a medical-malpractice case, ended up keeping a general practitioner on the jury because there were other panelists he was more concerned about. The jury found there was no negligence, but significant damages.

“I was concerned that it would be a one-person jury and, if she didn’t see things my way, I was dead,” said Carpenter. However, he believes that having a lawyer who was able to analyze the negligence and the damages issues separately may have helped his client get a favorable verdict.

A juror who is a lawyer may be an asset if the issue is the credibility of the witnesses, said Minneapolis lawyer Daniel J. Boivin. He once tried a business fraud case with a patent lawyer on the jury, and won a big verdict for the plaintiff, including punitive damages. That juror did turn out to be a leader during deliberations, Boivin observed.

“We were very nervous [about the juror], but he seemed interested and sincere so we left him on,” Boivin recalled. “We believed the defendants would lie and we wanted sophisticated jurors who would see through them. We wanted them to see the case in black and white and say, ‘This is wrong.’ He clearly saw the defendants were lying.”

Hennepin County District Court Judge Steven A. Pihlaja has experienced juries that included lawyers both during his time in practice and on the bench. He told Minnesota Lawyer that surprisingly, having an attorney on a jury didn’t seem to change the dynamics of the trial at all. He found that all jurors take their charges from the judge very seriously, and that includes jurors who happen to be lawyers.

“I found lawyers can change roles and behave exactly as a juror should,” said Pihlaja. He said that one juror-lawyer believed that Pihlaja had misstated the law, but applied the law as instructed, not the law as he believed it to be. (The law in question could have been interpreted in more than one way, added the judge.) That lawyer also declined to serve as foreperson because he didn’t want his legal experience to be any more influential than necessary, said Pihlaja.

Pihlaja’s court reporter recently served on a jury in Hennepin County. The reporter, Stephen R. Gill, said the case involved a dog bite and the plaintiff was awarded only his medical costs and nothing for pain and suffering, plastic surgery or scarring. Gill’s experience as a court reporter who has sat through hundreds of trials apparently didn’t present a problem to the lawyers who selected the jury.

Gill said he had told the attorneys during voir dire that he had a dog, that his dog used his son as a “chew toy,” and that his hero was his mother because she was in her 90s and never complained about aches and pains. “I could understand why the defendant kept me on but I have no idea why the plaintiff kept me on,” he said.

Credibility contest

Lawyers have also kept lawyer-jurors on panels in criminal cases, although sometimes the lawyers don’t understand why.

Minneapolis lawyer Susan M. Gallagher has served on two juries in criminal cases, both resulting in convictions. The second trial was a gross misdemeanor charge of interference with a 911 call, arising out of a domestic situation. “They knew I was a lawyer and a nurse. They knew I did medical malpractice and family law. I would not have kept me on that panel,” said Gallagher.

Gallagher was chosen foreperson of that jury and believes it was because she is a lawyer. The panel was uncomfortable because there was no police report and no evidence except the parties’ testimony and initially weren’t weighing the credibility of the witnesses, she said. Ultimately, however, the defendant was convicted, she added.

Charles A. Ramsay, a Roseville attorney, deliberately kept a tax attorney on a jury panel where he represented the defendant in a criminal case. The issues were a little more complicated and included medical evidence, he said. “We usually try to muddy the waters, but not in this case,” he added.

The jury was hung, and the case is presently being retried, but the tax lawyer was one of the jurors who voted for acquittal on the basis of reasonable doubt.

“That juror told me not to pick young yuppie types for a jury because they believed someone had to pay for the crime,” said Ramsay.

Attorney Thomas W. Geng of Minneapolis served as a foreperson of a jury in a murder trial in 1997. The jury ultimately convicted the defendant of second-degree murder.

According to Geng, the issue in the case was self-defense, and the testimony was highly disputed. The lawyers in that case thought an attorney on the jury would be a good judge of character in the case where the credibility of the witnesses was pivotal, he said.

Geng, a personal injury attorney, thought the other jurors were deferential toward him and allowed him to direct their attention away from inappropriate considerations, such as the sentence the defendant would receive.

Grand Forks attorney James D. Hovey served on a jury just before he started law school. Hovey pointed out that at the time he served, his father, brother and sister were lawyers. Hovey was the foreman and the jury took “about 30 seconds” to convict the defendant of possession of crack cocaine, he said. The defendant had been arrested in possession of 40 rocks of crack, a beeper and $400 in cash.

Criminal defense attorney Robert D. Miller of Minneapolis thinks that there is a place for lawyers on juries where the arguments are technical. He also believes that lawyers are better able to apply the defense of self-defense and that lawyers can set aside their prejudices more effectively than most in murder cases.

However, Miller said he did get hurt by a lawyer-juror in one case where he ran out of peremptory challenges. The juror started applying the civil doctrine of a thin-skulled plaintiff to a criminal case where it was inappropriate. “He started talking about law the judge wasn’t instructing on,” Miller said.