If I was trump's attorney I probably would have peremptorily struck them because of the political alignment of biglaw attorneys. I know David is far removed from his days at Wachtell, but as someone who was in biglaw during the time of Trump and beyond, it is a different ballgame in terms of open partisanship and vitriol.
That said, if the question is the more general "would you always err against a lawyer juror" for the concerns articulated by Bill Dyer, the answer would have to be no. I would love a lawyer-juror if I was a criminal defense attorney for a case involving drug crimes. I would love a pharma attorney-juror if I was defending a personal injury car accident case.
It's always going to depend on the facts of my case. Trump's case strikes me as a clear "nowhere near this jury pool" position for his defense team as it pertains to biglaw attorneys. Other cases would break different ways. If the facts were largely indifferent to commonly-held attorneys biases, I would probably err on striking attorneys from the pool.
I've never actually been selected for a jury, but in law school I opted to take part in Kirkland's two-day mock trial Kirkland Institute program (for I think fourth year associates?) as a volunteer juror. Once we broke for deliberations, the otherwise working-class mock jurors all largely deferred to my judgment as a law student -- which was strange to me and I worried my presence had undermined the purpose of the mock trial. I would be foolish if I didn't take that experience forward into my legal career.
I'm a lawyer and have served on a federal criminal jury with other lawyers. In that one experience, what I found most helpful from one or two of the lawyers during deliberations was reorienting the conversation to the elements of the crimes when the conversation strayed away from whether defendant met the elements and instead focused on something legally/factually irrelevant, like whether the defendant ought to be incapacitated in light of their conduct. Not all of the lawyers on the jury were outspoken/played an outsized role: whether they play such a role I think depends on the personality of the individual lawyers. I think there also may be an intentional reticence some lawyers will have when they're on a jury, not wanting to come across as playing an outsized role in the deliberations.
I have served on three juries, but only once was actually involved in deliberating to a verdict. That was my first jury, a buy and bust case in NY Supreme just shortly after Judge Kaye ended the exemption for lawyers. The defendant was so transparently guilty that the jury wanted to rush to a vote as soon as we got in the jury room. I asked, don't we owe it to the defendant to at least discuss the case? And don't we owe it to ourselves to stay long enough to get lunch? So we got lunch sent in and discussed the case and then convicted him.
The second case was civil litigation, an employment matter, and it became clear I was picked for the jury (a labor and employment law professor) because the lawyers didn't care - they seem to have agreed that the case was going to settle as soon as the plaintiff was persuaded that the jury was unlikely to rule for him. After several days of trial, they reached a settlement during the lunch break after the owner of the company had testified like a champ.
The third case was also civil litigation, an interesting medical malpractice case, and I was really enjoying the expert testimony and the diagrams and so forth, but then I tested positive for COVID19 and had to drop off the jury in mid-trial. Everyone else on the jury had to get a COVID test, but I don't think anyone else was infected. We all wore masks all the time. (This was in NY County Supreme at Thomas Street.) I later found out from the judge's office that the jury ruled for the defendant hospital and doctors, which was not surprising in light of the evidence I heard. Interestingly, half of the jury in this case were lawyers!!
Of course, I've been called for jury duty several times when I was not picked for the jury, and never found out why. Once I was sent back to the jury assembly room by the judge as soon as she walked into the courtroom for voir dire and spotted me; we had served on a bar association committee together. I thought that was unnecessary, but appearances, appearances.
As a lawyer, I've always been excluded when in the jury pool, but my spouse (also a lawyer) has been seated as a juror and my understanding of her view (if I may be so bold), lawyers are highly influential in the jury room. If so, I am convinced by your original view that such influence would, on balance, benefit Trump if only because lawyers are less likely to go along with a conviction based on animus.
As someone based in DC, who's been on a couple juries, but who isn't a lawyer, the jury pool would be tiny if they didn't let lawyers in! But it's hasn't happened on the various juries I've been part of. I once was picked even wearing official FBI gear (my employer at the time).
Posting on behalf of a reader who emailed me (as folks often do when they don't want to comment under their own name/Substack account):
"I know a federal district judge who sat on a state-court jury for a trial that involved his pre-appointment area of law (think Clarence Thomas sitting on a jury in an employment discrimination case or KBJ sitting on a criminal jury). The judge told the fellow jurors, 'I will not be the foreperson, and don't ask me any questions about how to interpret the law.'
I think I am in the middle ground between you and Bill Dyer. I do think Trump needs a jury that will decide this case on the law and not convict him just because they can. But I think you have to take a measure of the personalities of the two lawyers on the panel.
Are they likely to be like the judge I talked about, where they will actively work to not dominate the deliberations, or are they likely to run roughshod? Put another way: no gunners allowed on the jury."
If you run out of peremptories, there's nothing you can do. Otherwise, if there's one lawyer seated, you have a one-lawyer jury. Two lawyers, they *might* cancel each other out. A lawyer will not hesitate to hang a jury if in the minority. No way a lawyer-juror agrees just to get it over with.
I do agree with Mr. Dyer as to the not insignificant risk one takes in having a lawyer on the panel. Each case has its idiosyncrasies, and there might be a time that one would save the peremptory for another prospective juror, but in my mind this would not be often.
I was seated on one jury while I was still practicing law (several decades of which I was a trial lawyer), and the others on the panel wanted me to be the foreperson. I declined, because I understood that in such a role I might find myself asked (as well as be tempted) to teach and guide the others, and that I felt was not appropriate. But others might not have such discomfort in wielding an outsized role. While this is only an anecdote, it is exactly the point Mr. Dyer makes. If one ignores the risk, it needs to be for a very compelling reason.
Great question, and thank you for your insights, Bill. I am a lawyer. I have been practicing for over thirty years. I have always wanted to be selected as a juror, but never have had the honor. I have always assumed that I would never make it into the jury room as a lawyer. My thinking has always been that no trial attorney wants a lawyer on the jury for the very same reasons expressed by Mr. Dyer. My trial experience as a practitioner is limited to criminal trials. I have never had an attorney in the jury pool at voir dire, but agree with David F. that I would expect whether to exclude a lawyer from the jury to be a nuanced determination of strategy based on the issues and facts of one's case. I think I would solicit feedback from others in the jury pool during voir dire on how they feel about having a lawyer in the jury pool and how that might affect their ability to determine their own mind in reaching a verdict..
As a former administrative law judge and now arbitrator I have never been on a jury. As a young lawyer I had a dozen jury trials under my belt by 25.
If I was the prosecution I’d be happy to have the lawyers on the case unless they worked at a very republican law firm. I think they will see through the mounds of crap the Trump team is using in their arguments. I also think they will understand the credibility issues. I would have stricken the two lawyers if on Trumps team.
I’m a jurist and a lawyer, but have never visited North America. We don’t have juries but we do have lay members of the court in certain cases in the first instance but not on appeal. So we mostly plead to other lawyers.
I buy the opinion of the seasoned trial lawyer here. No matter how expertly you plead, if a lawyer were to get it in their head to ‘re-litigate’ one of the sides in a jury room, it would be very hard to succeed in pleading while under the processual rules such that someone not bound by them couldn’t totally wreck your case.
Bill's response CAN'T be correct because a trial is a zero sum game. If striking lawyers on the jury is desierable for the prosecution it must be a negative for the defense. I hear lawyers say things like this all the time but it just doesn't make any sense -- no kind of juror can be bad for both sides (modulo a few inapplicable quibbles).
I think a charitable reconstruction of what Bill is saying would be that lawyers on the jury are wild cards that might ignore your arguments. Plausible, but that means whatever side thinks they are more likely to lose the jury should want lawyers in the jury.
And that's absolutely the position Trump is in here.
I'm a transactional lawyer who to date has been stricken every time during voir dire, so I have no experience to share. David's position makes sense to me in a case in which emotions are likely to be high and the legal standards complex, especially in an area with a very unfriendly jury pool. That said, l have a firm policy of always deferring to Beldar, especially on legal questions, so Bill Dwyer FTW.
IANAL, but I agree with Bill Dyer's reasoning. I wouldn't want, either as attorney or defendant, to have my case re-argued in the jury room, without my own attorneys and the judge present. I would have struck those lawyers and any lawyers in a case in which I was the defendant.
If I represented Trump, I would want those lawyers on the jury. This prosecution is an utter travesty and is being presented as a political fait accompli to the jury. Fry that big orange guy regardless of the law and facts! Perhaps the two lawyers are a Hail Mary pass — Staubach to Pearson — but Staubach completed that pass to Pearson and won the game. Regardless, the undeniable truth is that this ridiculous prosecution — how about a unilateral gag order or a new alleged crime introduced mid-trial? — and the biased rulings of Judge Engoron in the companion proceeding are stripping NYC of its reputation as a place where the rule of law can be invoked. A gutter proceeding being prosecuted by gutter lawyers in a gutter court. A trifecta!
If I was trump's attorney I probably would have peremptorily struck them because of the political alignment of biglaw attorneys. I know David is far removed from his days at Wachtell, but as someone who was in biglaw during the time of Trump and beyond, it is a different ballgame in terms of open partisanship and vitriol.
That said, if the question is the more general "would you always err against a lawyer juror" for the concerns articulated by Bill Dyer, the answer would have to be no. I would love a lawyer-juror if I was a criminal defense attorney for a case involving drug crimes. I would love a pharma attorney-juror if I was defending a personal injury car accident case.
It's always going to depend on the facts of my case. Trump's case strikes me as a clear "nowhere near this jury pool" position for his defense team as it pertains to biglaw attorneys. Other cases would break different ways. If the facts were largely indifferent to commonly-held attorneys biases, I would probably err on striking attorneys from the pool.
I've never actually been selected for a jury, but in law school I opted to take part in Kirkland's two-day mock trial Kirkland Institute program (for I think fourth year associates?) as a volunteer juror. Once we broke for deliberations, the otherwise working-class mock jurors all largely deferred to my judgment as a law student -- which was strange to me and I worried my presence had undermined the purpose of the mock trial. I would be foolish if I didn't take that experience forward into my legal career.
I'm a lawyer and have served on a federal criminal jury with other lawyers. In that one experience, what I found most helpful from one or two of the lawyers during deliberations was reorienting the conversation to the elements of the crimes when the conversation strayed away from whether defendant met the elements and instead focused on something legally/factually irrelevant, like whether the defendant ought to be incapacitated in light of their conduct. Not all of the lawyers on the jury were outspoken/played an outsized role: whether they play such a role I think depends on the personality of the individual lawyers. I think there also may be an intentional reticence some lawyers will have when they're on a jury, not wanting to come across as playing an outsized role in the deliberations.
I have served on three juries, but only once was actually involved in deliberating to a verdict. That was my first jury, a buy and bust case in NY Supreme just shortly after Judge Kaye ended the exemption for lawyers. The defendant was so transparently guilty that the jury wanted to rush to a vote as soon as we got in the jury room. I asked, don't we owe it to the defendant to at least discuss the case? And don't we owe it to ourselves to stay long enough to get lunch? So we got lunch sent in and discussed the case and then convicted him.
The second case was civil litigation, an employment matter, and it became clear I was picked for the jury (a labor and employment law professor) because the lawyers didn't care - they seem to have agreed that the case was going to settle as soon as the plaintiff was persuaded that the jury was unlikely to rule for him. After several days of trial, they reached a settlement during the lunch break after the owner of the company had testified like a champ.
The third case was also civil litigation, an interesting medical malpractice case, and I was really enjoying the expert testimony and the diagrams and so forth, but then I tested positive for COVID19 and had to drop off the jury in mid-trial. Everyone else on the jury had to get a COVID test, but I don't think anyone else was infected. We all wore masks all the time. (This was in NY County Supreme at Thomas Street.) I later found out from the judge's office that the jury ruled for the defendant hospital and doctors, which was not surprising in light of the evidence I heard. Interestingly, half of the jury in this case were lawyers!!
Of course, I've been called for jury duty several times when I was not picked for the jury, and never found out why. Once I was sent back to the jury assembly room by the judge as soon as she walked into the courtroom for voir dire and spotted me; we had served on a bar association committee together. I thought that was unnecessary, but appearances, appearances.
As a lawyer, I've always been excluded when in the jury pool, but my spouse (also a lawyer) has been seated as a juror and my understanding of her view (if I may be so bold), lawyers are highly influential in the jury room. If so, I am convinced by your original view that such influence would, on balance, benefit Trump if only because lawyers are less likely to go along with a conviction based on animus.
As someone based in DC, who's been on a couple juries, but who isn't a lawyer, the jury pool would be tiny if they didn't let lawyers in! But it's hasn't happened on the various juries I've been part of. I once was picked even wearing official FBI gear (my employer at the time).
Posting on behalf of a reader who emailed me (as folks often do when they don't want to comment under their own name/Substack account):
"I know a federal district judge who sat on a state-court jury for a trial that involved his pre-appointment area of law (think Clarence Thomas sitting on a jury in an employment discrimination case or KBJ sitting on a criminal jury). The judge told the fellow jurors, 'I will not be the foreperson, and don't ask me any questions about how to interpret the law.'
I think I am in the middle ground between you and Bill Dyer. I do think Trump needs a jury that will decide this case on the law and not convict him just because they can. But I think you have to take a measure of the personalities of the two lawyers on the panel.
Are they likely to be like the judge I talked about, where they will actively work to not dominate the deliberations, or are they likely to run roughshod? Put another way: no gunners allowed on the jury."
If you run out of peremptories, there's nothing you can do. Otherwise, if there's one lawyer seated, you have a one-lawyer jury. Two lawyers, they *might* cancel each other out. A lawyer will not hesitate to hang a jury if in the minority. No way a lawyer-juror agrees just to get it over with.
I blush. But I'm looking forward to reading all comments.
I do agree with Mr. Dyer as to the not insignificant risk one takes in having a lawyer on the panel. Each case has its idiosyncrasies, and there might be a time that one would save the peremptory for another prospective juror, but in my mind this would not be often.
I was seated on one jury while I was still practicing law (several decades of which I was a trial lawyer), and the others on the panel wanted me to be the foreperson. I declined, because I understood that in such a role I might find myself asked (as well as be tempted) to teach and guide the others, and that I felt was not appropriate. But others might not have such discomfort in wielding an outsized role. While this is only an anecdote, it is exactly the point Mr. Dyer makes. If one ignores the risk, it needs to be for a very compelling reason.
Great question, and thank you for your insights, Bill. I am a lawyer. I have been practicing for over thirty years. I have always wanted to be selected as a juror, but never have had the honor. I have always assumed that I would never make it into the jury room as a lawyer. My thinking has always been that no trial attorney wants a lawyer on the jury for the very same reasons expressed by Mr. Dyer. My trial experience as a practitioner is limited to criminal trials. I have never had an attorney in the jury pool at voir dire, but agree with David F. that I would expect whether to exclude a lawyer from the jury to be a nuanced determination of strategy based on the issues and facts of one's case. I think I would solicit feedback from others in the jury pool during voir dire on how they feel about having a lawyer in the jury pool and how that might affect their ability to determine their own mind in reaching a verdict..
As a former administrative law judge and now arbitrator I have never been on a jury. As a young lawyer I had a dozen jury trials under my belt by 25.
If I was the prosecution I’d be happy to have the lawyers on the case unless they worked at a very republican law firm. I think they will see through the mounds of crap the Trump team is using in their arguments. I also think they will understand the credibility issues. I would have stricken the two lawyers if on Trumps team.
I’m a jurist and a lawyer, but have never visited North America. We don’t have juries but we do have lay members of the court in certain cases in the first instance but not on appeal. So we mostly plead to other lawyers.
I buy the opinion of the seasoned trial lawyer here. No matter how expertly you plead, if a lawyer were to get it in their head to ‘re-litigate’ one of the sides in a jury room, it would be very hard to succeed in pleading while under the processual rules such that someone not bound by them couldn’t totally wreck your case.
Bill's response CAN'T be correct because a trial is a zero sum game. If striking lawyers on the jury is desierable for the prosecution it must be a negative for the defense. I hear lawyers say things like this all the time but it just doesn't make any sense -- no kind of juror can be bad for both sides (modulo a few inapplicable quibbles).
I think a charitable reconstruction of what Bill is saying would be that lawyers on the jury are wild cards that might ignore your arguments. Plausible, but that means whatever side thinks they are more likely to lose the jury should want lawyers in the jury.
And that's absolutely the position Trump is in here.
I'm a transactional lawyer who to date has been stricken every time during voir dire, so I have no experience to share. David's position makes sense to me in a case in which emotions are likely to be high and the legal standards complex, especially in an area with a very unfriendly jury pool. That said, l have a firm policy of always deferring to Beldar, especially on legal questions, so Bill Dwyer FTW.
IANAL, but I agree with Bill Dyer's reasoning. I wouldn't want, either as attorney or defendant, to have my case re-argued in the jury room, without my own attorneys and the judge present. I would have struck those lawyers and any lawyers in a case in which I was the defendant.
If I represented Trump, I would want those lawyers on the jury. This prosecution is an utter travesty and is being presented as a political fait accompli to the jury. Fry that big orange guy regardless of the law and facts! Perhaps the two lawyers are a Hail Mary pass — Staubach to Pearson — but Staubach completed that pass to Pearson and won the game. Regardless, the undeniable truth is that this ridiculous prosecution — how about a unilateral gag order or a new alleged crime introduced mid-trial? — and the biased rulings of Judge Engoron in the companion proceeding are stripping NYC of its reputation as a place where the rule of law can be invoked. A gutter proceeding being prosecuted by gutter lawyers in a gutter court. A trifecta!