Inside the Jury RoomAuthor(s): Art BuchwaldSource: Litigation, Vol. 7, No. 1, TRIAL BY JURY (Fall 1980), pp. 44, 55Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758587 .

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One of West Texas's most color? ful, forceful, and imaginative lawyers died many years ago. As a young law? yer, I was sitting in his office when a woman came in who had been injured in an automobile collision. The law? yer said: "Tell me about the wild, reckless fool that ran over you." The

prospective client replied, "Well, judge, I pulled up to this stop sign and

stopped. Then I pulled out, and I never did see the other car, and he ran into me."

The lawyer said, "Damn, daugh? ter, that'll never do. What you mean is, you pulled up to the stop sign and

stopped. You looked and you saw this crazy fool blocks away. You had plen? ty of time to get across there if he had been driving at anything like the

speed limit. How were you to know

that he was driving like a bat out of hell? Then you proceeded out cau?

tiously into the intersection and he came hurtling down on you like the blind, crazy fool he is and ran over

you." After some prodding by the

lawyer, the client recognized the true facts.

Deadly Prosecutor Some of our lawyers have turned

their misfortune to advantage. There was a district attorney I once knew who was quite colorful. He was a

deadly prosecutor, but at the same time, he was a fighter and a lover and a wild horse rider. He also drank to excess and gambled some.

He was a very popular district attor?

ney, but was defeated for a third term because he was arrested while on the

top floor of a local hotel with some ladies of the evening. In the course of the arrest, he felled two policemen and a bellboy. He then engaged in a

boxing match in a local bar.

This unofficial conduct made the front page of the local newspaper. The notoriety led to his defeat, but he refused to be cowed by it. Shortly after

losing the election he was trying a per? sonal injury case to a jury. He repre? sented a plaintiff who had serious and permanent injuries, but liability was thin. His closing argument went like this:

A lot of people in this town don't like me. I've been in some trou? ble lately. I am pleased to say that my wife is still bearing with

(Please turn to page 58)

Inside the Jury Room The justice system in this country seems as loused up as everything else. One of the reasons for this is that the law provides that anyone who has a

legal dispute involving more than $50 is entitled to a jury. Most jurors can deal with personal injury and liability cases. But you have to have an MBA from Harvard, a law degree from Stanford and an accounting diploma from the Wharton School to be able to follow the complicated suits that or?

dinary citizens are required to ad? judicate these days.

How can the average jury under? stand the issues in a multi-billion dollar corporation lawsuit?

A well-known trial lawyer told me

they can't. Most juries involved with any business litigation make their decisions based on things other than the thousands of pieces of evidence and months of testimony that neither they nor the judge understand.

This is how it goes in the jury room, he told me.

"I think we should find for the

plaintiffs." "Why?" "Their chief lawyer always looks so

fresh and neat no matter how hot it is in the courtroom."

"I'm for throwing out all the charges. The defense has a woman

lawyer on the staff, and I think if we

by Art Buchwald voted for the defendants, it would en?

courage large corporations to hire more women lawyers."

"That's the stupidest reason I ever heard for judging a case. If we're go? ing to play by those rules, we have to take into consideration that one of the

plaintiffs' executives has a bad limp. Why not give the billion dollars to them for hiring the handicapped?"

"Wait, we're getting away from the evidence. Let's go over it again."

"Are you crazy? No one in this room knows what anyone out there was talking about."

"Okay. Let's NOT go over the evi? dence. How do we arrive at a deci? sion?"

"I'm for giving the nod to the plain? tiffs. Their backup lawyer always came over to us when he wanted to make a point. The defendants' lawyer preferred to address his remarks to the judge. If he wanted to win, the defense counsel should have paid more attention to us."

"You're too sensitive. Only the fat defendants' lawyer ignored us. The cute one with the horn-rimmed

glasses spent a lot of time leaning against the jury box. He had beautiful

eyes."

"But hehadabeard. I'dnever trust a person who sports a beard."

"My son has a beard." "I thought as much, and while

we're on the subject?I don't trust you either."

"Hold it. We've been together five months. Let's get a decision so we can all go home. How do you vote?"

"How is she voting?" "I'm voting for the plaintiffs." "Then I'm voting for the defen?

dants."

"We're never going to see our loved ones again. There has to be a compro? mise. I suggest we give the plaintiffs half of what they are asking."

"Why?" "Do you remember when the pres?

ident of the injured company testi? fied? His entire family sat in the first row for five days. I thought that was

very loyal of them. You don't see fam? ilies that close any more."

"Are you planning to give the plain? tiffs half a billion dollars because their chief executive officer has a nice

family? How do we know what goes on behind closed doors?"

"I agree. Besides, the defendant

company's chairman of the board wore his Shriner's pin when he took the stand. I happen to be a Shriner, and I'll take a lodge brother's word

(Please turn to page 55)

44

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A. Yes.

Q. And you were drunk and dis?

orderly in March of 1978, were

you not? A. No.

Q. You do know what drunk means, do you not?

A. Yes.

Q. And disorderly, you know what that means, do you not?

A. Yes.

Q. And you knew the meaning of both those words on January 1, 1979, did you not?

A. Yes.

Q. And you were drunk and

disorderly on that date, too, were you not?

A. I don't recall.

Q. You don't recall, do you? A. No.

Q. But, you do recall Fenster's, do

you not? A. Yes.

Q. You recall being there, isn't that right?

A. Yes.

Q. And you recall having a drink at Fenster's, do you not?

A. Yes.

Q. In fact, you had more than one

drink, did you not? A. Yes.

Q. Now, you understand that you were drinking at Fenster's, do

you not? A. Yes.

Q. And when a person drinks, he sometimes gets drunk, does he not?

A. Yes.

Q. And sometimes disorderly as well as drunk, true?

A. Yes.

Q. And sometimes he gets so

drunk, he can't recall being drunk and disorderly, isn't that a fact?

A. No. (The answer doesn't really matter, does it?)

In the second examination, the examiner controlled the witness

throughout. He turned the witness's words about not understanding the word "drinking" against him. He

got the answer he originally wanted and more. How did he accomplish this? Look at the second question. The examiner took the words the witness used in the answer which

preceded it and made those words

into the next question. By doing this, the examiner forced the witness to answer "yes." At the same time, he

pinned the witness down to an inde? fensible position. Every time a wit? ness gives an answer other than the

expected "yes" or "no," he is trying to avoid being trapped. If the witness senses what it is you want him to say, he will, in all likelihood, equivo? cate. Whenever he does, he hands the examiner a perfect opening for just such an examination. This technique of using the witness's answer as the next question, takes away the fear of not knowing how to deal with the un?

expected answer. In every instance, the witness's answer will become the next question. You no longer have to be overly concerned with the problem of thinking about what the next ques? tion will be. If you do not listen to the witness, you will not hear his exact answer. Without that, you cannot use this technique effectively.

Professor Younger says that every time a trial lawyer disobeys one of his

commandments, that lawyer wishes the courtroom floor would open beneath his feet, swallow him, and hide him forever from further embar? rassment. I hope that these sugges? tions will help keep you from that fate.

Inside the

Jury Room

(Continued from page 44) against anyone who drags his kids out of school to sit at a trial.''

44 We appear to be split on a verdict.

Shall I report to the judge that we can't come to a decision?"

"Don't do that. He'll make us read the court transcript again. I say we

flip a coin. Heads we find for the

plaintiffs?tails for the defendants."

"Okay, as long as she takes back what she said about men with beards."

"I take it back, but only because I believe justice should be served."

? 1980, Los Angeles Times Syndicate.

Reprinted by permission.

Diversity

Jurisdiction

(Continued from page 40) eluded 24 responses. Again, fear of local prejudice was the leading response (4 or 16.7% of responses or 37.5% of returns), while fear of local

prejudice held third in the urban returns.

The Minnesota study offers added

empirical evidence that, even today, there is a real fear of local prejudice, especially in rural areas. This fear was

expressed not only on a hypothetical level but also as a basis for action. Re? sults may vary in other states and ad? ditional studies would be desirable. But it seems likely that the number of

lawyers fearing local prejudice could

only be greater in states that do not have a high quality state judiciary or modernized rules of procedure.

It may be difficult for some to

square these findings with the notion that the United States has passed the state of local hostilities, rivalries, and

prejudices. But the actual existence of local prejudice is irrelevant. The drafters of the Constitution did not create diversity jurisdiction based on

proof of local prejudice. It was created based on fear of local pre? judice. Chief Justice Marshall, in

Bank of United States v. Deveaux, 9 U.S. (5 Cranch) 61 (1809), said, "The Constitution itself either entertains

apprehensions on this subject, or views with such indulgence the possi? ble fears and apprehensions of suitors

[that it has provided for diversity jurisdiction]."

You cannot tell a person who fears local prejudice that his fears are

groundless. It is important not only that a party receives a fair trial but that he believes that he has received it. Both the supporters and opponents of

diversity jurisdiction too often speak of prejudice, rather than fear of pre? judice. The results of this recent study should remind us that the fear of local

prejudice is the key consideration. Fear of local prejudice still is

widespread. If recognition of that fear

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