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.
You certainly have and I greatly appreciate you for it!
I think I was just taking slight issue with the line you wrote: "Given the political orientation of Manhattan, which gave Joe Biden 85 percent of the vote in 2020, the best the defense can hope for is jurors who will be fair and open-minded—as opposed to jurors who will convict Trump for the crime of being Trump."
I would be surprised if NYC biglaw deviated in any meaningful way from the 85% Biden support number in a downwards fashion (and wouldn't be surprised if it deviated in a meaningful way in an upwards fashion). And from comments I personally heard freely and openly stated in the office of my prior firm (to be fair, almost exclusively from associates), I suspect there would be a significant number who would happily and readily convict Trump for the crime of being Trump. In fact, I suspect Biglaw would disproportionately have people who would convict Trump for the crime of being Trump -- it strikes me that biglaw attorneys are the prime target demographic for consuming copious amounts of political media as currently prepared by the likes of the NYT and the Washington Post.
If I had been Trump's team, I would have been aggressively looking for working-class jurors who consume almost no political media. Biglaw attorneys feel like the stark opposite of that profile.
Wow—interesting that you got deference even as a law student!
I guess every jury is different; there might be some juries where the laypeople rebel against the notion of lawyers having special expertise or insight. But I would guess that on the average jury, the other jurors would defer—at least to some degree—to a lawyer.
I was very surprised by the deference. I didn't even expect the other jurors to remember my answers revealing that I was a law student in the short voir dire we performed (although I was inadvertently dressed up in a way none of them were!) -- as I was trying quite hard to not have an outsized influence on the mock trial program. Perhaps there's something to be said for the fact that it was a mock trial, and the other volunteers knew there were no stakes as high as prison-time.
As an addendum to my prior post, after giving this slightly more thought, I think as it pertains to the Trump case, I actually would add an asterix to my point. Absolutely without question I hold the position I articulated if the biglaw attorney was an associate or young partner. If it was an old, senior partner, who for example came up with the firm in the 80s and the like, I might alter my position as I think that cohort is far less likely to be strictly ideological and rigid -- and more willing to grapple with the complexities from their experience being a part-owner of a business. Meanwhile young associates are overtly political in a way that is probably wholly new to the legal profession (Paul Clement is probably still scratching his head over how things have changed).
It is a bit similar to how I'd view, say, a criminal case against a Columbia law student who was arrested for trespassing related to recent campus protests. I think a young, fresh, biglaw associate would approach such a case from a very predictable lens, meanwhile an older partner would be harder to predict.
Wonderful comment! To it, I respond with a question: What if you think the lawyer may be smarter than you? Would you still take him or her? Does that matter?
My working assumption is that the cleverest, best-educated jurors are likely to follow the evidence at the highest level of attention and understanding; that there is a middle portion of most juries which are following the main points, but couldn't independently articulate them if their lives depended on it; and a third group which may have strong and important opinions about such things as witness credibility, but that became lost in the details early on and probably missed most of them; they're not deadwood, but they're at the other end of the spectrum from the opinion leaders.
I want to present a case that is so well understood by the opinion leaders on the jury that when all the jurors are in the jury room going through the questions asked by the court, those jurors can accurately parse the questions and instructions, recall and describe testimony, find the relevant highlighted portions of the documentary evidence, and generally help guide the other jurors down the path I've blazed without getting sidetracked or confused by the extraneous and irrelevant.
A lawyer-juror is the ultimate influencer, as your own experience (and mine, in the one case in which I've been a juror) demonstrated. If I'm letting him or her argue my case in the jury room, I've effectively promoted that guy to "lead counsel" for the whole case — both sides and the judge put together — with no way to know about, correct, or get a remedy for things said lawyer-juror THOUGHT he/she knew, but got wrong back there. He or she is going to lead the jury, probably, and I might even think it's pretty darn likely that he or she will find the path I've blazed to be an attractive one.
But if he or she starts blazing his own path, all of us out in the courtroom may be well and truly screwed. The potential risk is catastrophic.
And there are LOTS of smart people from other professions and occupations who I expect to fall into the first category, the influencers. If I can pick a jury with several of those on it, I'm still getting most of the potential benefit in terms of influencing the second and third groups. But when I strike a potential lawyer-juror, I've eliminated a risk, however large or small, of one juror basically making my work irrelevant because he also has a bar card in his pocket.
Most lawyers, of whatever practice type and even including nonpracticing lawyers, ought to start off with high levels of skepticism, for example, about the propriety of Cohen writing up phony invoices as if he were billing for legal work done, when he's actually applying to his client for reimbursement (plus gravy) of funds he's passed on to someone else on behalf of his client. So Trump's sidewalk argument — in effect that these WERE legal expenses, because they passed through someone who's a lawyer — is likely to strike them as offensively misleading and deeply unethical. Those of us who care about ethics despise "fixers" like Cohen — or the lawyer Trump wanted Cohen to be, Roy Cohn — even if we're not at BigLaw firms. Certainly any BigLaw lawyer in NYC would know Trump's reputation for hiring lawyers who'll tell him what he wants to hear, then eventually get fired and replaced by someone else who'll tell him that the last lawyers screwed everything up (which is what he wants to hear), who are in turn replaced until we get to the likes of Alina Habba, who first caught my attention in a TV interview in which she didn't understand that to plead is a verb, and a plea is a noun.
So I can come up with arguments why the prosecutors might have decided that taking two lawyers, a litigator and a deal lawyer (covering the waterfront nicely between them!), was an acceptable calculated risk. But I think its an incalculable, unique risk. I wouldn't have let either of these two lawyers on, even though I'd tend to agree that they'd likely be stronger prosecution jurors than defense jurors.
With the upfront disclaimer that I am now in house and no longer litigate and hold these positions without the accountability of ever having to put them into practice in the future:
Regarding intelligence of a lawyer juror, I think I'd prefer a smart lawyer over a dumb one on a jury. Maybe it's a naive view of the profession, but I think a smart lawyer would have more respect for the process than a "I'm a lawyer, fellow jurors, and I am right and you don't understand this". However, with any lawyer on a jury, there certainly would be a heightened effort to look professional, not raise stupid objections, and duly follow procedure not just to maintain credibility with the judge, but also that juror. But that all cuts both ways, as the other side's legal team will have the same issues.
On intelligence more generally, since trials are on the factual issues rather than the law, I wouldn't be so worried about someone winding up on the jury who is smarter than me --you've got to plan for that. However, I would be much more worried about someone winding up on the jury who would believe they are smarter than my experts. My understanding is that this is a particular issue for lawyers who practice in the Northern District of California (particularly for cases in the San Jose courthouse) whose jury pools are often littered with some of the brightest people in Silicon Valley.
Regarding the decision of the prosecutors in Trump's case, I think it's such a strong benefit to the prosecution for the reasons you list and more (a deal lawyer is going to despise cavalier treatment of business records; a civil litigator is going to expect reputable performances from the Trump defense and they'll have a harder time hoodwinking the jury) that it isn't particularly hard decision. I don't really view it as "an incalculable, unique risk" generally, but certainly not here -- where the "rogue juror" scenario the prosecution is most worried about is going to be whether they've picked a Trump partisan, rather than the rogue lawyer juror scenario. The prosecution is going to need unanimity, and their number one concern is not inadvertently picking someone who will never convict Trump. Couple that with all the soft benefits of having lawyers on this particular case, it seems like an easy decision.
But I go back to Trump's legal team. What were they thinking? Maybe they thought these two were the best options of lawyers if they were going to get any. Gunderson is tied closely with the VC world and represents startups largely -- maybe more sympathetic to not scrutinizing cavalier behavior to records and doing everything by the book. Hunton Andrews Kurth is a southern firm (Andrews Kurth was Houston-based, Hunton Williams Richmond-based) and may attract more right-leaning sympathetic folks and the lawyers are more likely to take on clients that white-shoe New York firms would look down on. But I'm really reading tea-leaves there, trying to justify a decision I cannot otherwise wrap my head around.
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.
“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.”
We had this happen on my jury. There’s often a temptation (maybe even a tendency) to go off on tangents or discuss things that are irrelevant—e.g., jurors’ opinions on the lawyers.
But do you think only lawyers can reorient the conversation? Yes, they're likely to be particularly effective at it, and if you like the way they're reorienting the conversation, you're thrilled. If not, then not.
Give me an articulate accountant or school teacher any day. They can still be the strong opinion leaders who'll stick to the evidence and the court's charge (if that's what you're looking for; Trump's lawyers ought not be, given their case and their client).
My peremptory strikes are for eliminating those jurors I haven't been able to persuade the court to excuse who I think pose the greatest risk of leading the rest down the wrong path. I certainly don't want to spend a peremptory strike on someone who I think is likely to be a follower or an ineffective leader.
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.
Thanks for these excellent thoughts, Art! Some comments:
1. The fact that a lawyer and law professor can make it onto the jury three times, even if only one case went to verdict, supports my anecdotal sense that this happens more often than people think.
2. It's interesting that one of your cases settled. The second jury I was picked for, also a med-mal case—I mentioned during voir dire that my parents are both doctors, but said I thought I could be fair—settled right before we were sworn. (I recall that there was at least one other lawyer on that jury—coincidentally enough, the husband of a former colleague of mine from the U.S. Attorney's Office.)
The judge was very nice. He thanked us for our willingness to serve, noting that the presence of a jury often plays a very helpful role in getting cases to settle.
3. "And don't we owe it to ourselves to stay long enough to get lunch?"
On the criminal jury I served on, where we got the case on a Thursday afternoon, we had one holdout. After we got our sandwiches on Friday, her objections mysteriously vanished.
I also suspect that Friday around 2 or 3 p.m. is a time when many jurors suddenly obtain newfound clarity on cases....
A short war story from a blog post I wrote years ago, about a trial even longer ago:
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I had a jury deliberating in Judge Hugo Touche's 129th District Court in the old Civil Courts Building well into the late afternoon hours, as Hurricane Alicia approached on Thursday, August 18, 1983, with its eye already predicted — accurately, it turned out! — to pass directly over downtown Houston at about midnight. We'd done our closing arguments the prior afternoon, and our jury had started deliberating that morning at 9:00 a.m. Now we were the last folks in the courthouse; all the windows were taped, and some were boarded with plywood. But the edges of the blinds on some of the courtroom's windows still flashed red and white in crazy patterns — from the cherry-tops on the law enforcement vehicles parked to block the streets outside: Downtown Houston had been evacuated and its entrances barricaded by uniformed HPD officers.
The jury sent out a note which asked, pithily: "What happens if we don't reach a verdict before the Hurricane?"
Judge Touche wrote a reply which said, "If you cannot reach a verdict today, I will discharge you until next Tuesday." Being quite literal, the jurors interpreted "today" to mean "on this calendar day" — in other words, that he was planning to kept them deliberating until midnight! In fact, he was willing to let them go as soon as they wanted to, since it was already after 5pm. But with this incentive, we had a verdict in about four minutes. The time pressure helped move a holdout from the 9/3 vote in my client's favor that they'd been stuck on since noon, to the 10/2 required for a valid civil verdict.
Alicia was a lady to me, as Frank Sinatra might have said, or sung, if he'd had a jury out in a hurricane.
For what it is worth, after my employment trial was over, I got a friend who is a judge to ask the judge on my case if he had any idea why the lawyers put me on the jury. He said he had been curious and asked them. They told him that they thought some of the evidence in the case was complicated and it would be good to have an employment lawyer on the jury who could explain things to the other jurors. WRONG ANSWER!! I think they didn't care, because they expected to settle the case once the plaintiff sat through a few days of testimony.
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).
I am a lawyer in DC, and while DC requires attorneys to report for jury duty (which isn't true in every jurisdiction, but would be untenable in the District for reasons you noted) the experience of both me and colleagues is that the trial lawyers are heavily disinclined towards seating us if they don't have to.
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.
Sometimes the venire is so horrible you don't have have any left. And Hizzoner asks the lawyer-venireman if he can be fair. "Of course," he replies, and you've got a one man jury. Then again, basically we assume sympathies based on addresses and ethnicity. Especially on the federal side, you have no idea who the jurors really are.
Yes, this is a significant consideration. Trump is charged with class-E felonies—the lowest level of felony in New York—and each side gets only ten peremptory challenges. Given how hostile this jury pool must be to Trump overall, it could have been foolish for Trump’s attorneys to use up a fifth of those challenges on otherwise-acceptable prospective jurors just because they were lawyers.
Agreed—a key point. I didn't follow the jury selection process in this case closely enough to know what other potential jurors Team Trump was dealing with. But I'd take a random transactional lawyer any day over the woman who posted on social media that she "wouldn’t believe Trump if his tongue were notarized."
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..
GREAT observation! "If you're selected, Juror #B315 [aka Perry Mason], can you put aside your own legal training and experience, and apply only the law as given to you by Judge Wisdom in the charge of the court?" You'll get the expected "yes" answer, but the point is to remind Mr. Mason AND EVERYONE ELSE WHO MAKES IT ON THE JURY that Mr. Mason is just one more juror.
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.
Indeed, the fact that I hear attorneys frequently make claims like those Bill makes -- whatever side of the case you are on you don't want X's on the jury -- makes me worry that lawyers are frequently opposing jurors who benefit their client because the lawyer doesn't like the feeling of things being out of their control (even if more randomness and unpredictability are in their client's interest) or irrationally assumes that won't be helpful.
I hope there is some other explanation but I'm at a bit of a loss. Quite plausibly Bill meant specifically as a defense lawyer (don't mean to critisize him) but I've heard the same sentiment expressed without that reservation.
Astute comments. The generalizations presented as the arguments to refute here aren't replacements for the specific considerations necessary to make determinations in any particular case. This case is also particularly unique.
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 definitely agree with you on the liberal bent of Biglaw in 2024! Although I’m no longer in those trenches, I’ve written about it extensively:
https://davidlat.substack.com/p/on-the-need-for-diverse-viewpoints
https://davidlat.substack.com/p/more-thoughts-on-intellectual-diversity
https://davidlat.substack.com/p/does-biglaw-have-a-liberal-bent
You certainly have and I greatly appreciate you for it!
I think I was just taking slight issue with the line you wrote: "Given the political orientation of Manhattan, which gave Joe Biden 85 percent of the vote in 2020, the best the defense can hope for is jurors who will be fair and open-minded—as opposed to jurors who will convict Trump for the crime of being Trump."
I would be surprised if NYC biglaw deviated in any meaningful way from the 85% Biden support number in a downwards fashion (and wouldn't be surprised if it deviated in a meaningful way in an upwards fashion). And from comments I personally heard freely and openly stated in the office of my prior firm (to be fair, almost exclusively from associates), I suspect there would be a significant number who would happily and readily convict Trump for the crime of being Trump. In fact, I suspect Biglaw would disproportionately have people who would convict Trump for the crime of being Trump -- it strikes me that biglaw attorneys are the prime target demographic for consuming copious amounts of political media as currently prepared by the likes of the NYT and the Washington Post.
If I had been Trump's team, I would have been aggressively looking for working-class jurors who consume almost no political media. Biglaw attorneys feel like the stark opposite of that profile.
Wow—interesting that you got deference even as a law student!
I guess every jury is different; there might be some juries where the laypeople rebel against the notion of lawyers having special expertise or insight. But I would guess that on the average jury, the other jurors would defer—at least to some degree—to a lawyer.
I was very surprised by the deference. I didn't even expect the other jurors to remember my answers revealing that I was a law student in the short voir dire we performed (although I was inadvertently dressed up in a way none of them were!) -- as I was trying quite hard to not have an outsized influence on the mock trial program. Perhaps there's something to be said for the fact that it was a mock trial, and the other volunteers knew there were no stakes as high as prison-time.
As an addendum to my prior post, after giving this slightly more thought, I think as it pertains to the Trump case, I actually would add an asterix to my point. Absolutely without question I hold the position I articulated if the biglaw attorney was an associate or young partner. If it was an old, senior partner, who for example came up with the firm in the 80s and the like, I might alter my position as I think that cohort is far less likely to be strictly ideological and rigid -- and more willing to grapple with the complexities from their experience being a part-owner of a business. Meanwhile young associates are overtly political in a way that is probably wholly new to the legal profession (Paul Clement is probably still scratching his head over how things have changed).
It is a bit similar to how I'd view, say, a criminal case against a Columbia law student who was arrested for trespassing related to recent campus protests. I think a young, fresh, biglaw associate would approach such a case from a very predictable lens, meanwhile an older partner would be harder to predict.
Wonderful comment! To it, I respond with a question: What if you think the lawyer may be smarter than you? Would you still take him or her? Does that matter?
My working assumption is that the cleverest, best-educated jurors are likely to follow the evidence at the highest level of attention and understanding; that there is a middle portion of most juries which are following the main points, but couldn't independently articulate them if their lives depended on it; and a third group which may have strong and important opinions about such things as witness credibility, but that became lost in the details early on and probably missed most of them; they're not deadwood, but they're at the other end of the spectrum from the opinion leaders.
I want to present a case that is so well understood by the opinion leaders on the jury that when all the jurors are in the jury room going through the questions asked by the court, those jurors can accurately parse the questions and instructions, recall and describe testimony, find the relevant highlighted portions of the documentary evidence, and generally help guide the other jurors down the path I've blazed without getting sidetracked or confused by the extraneous and irrelevant.
A lawyer-juror is the ultimate influencer, as your own experience (and mine, in the one case in which I've been a juror) demonstrated. If I'm letting him or her argue my case in the jury room, I've effectively promoted that guy to "lead counsel" for the whole case — both sides and the judge put together — with no way to know about, correct, or get a remedy for things said lawyer-juror THOUGHT he/she knew, but got wrong back there. He or she is going to lead the jury, probably, and I might even think it's pretty darn likely that he or she will find the path I've blazed to be an attractive one.
But if he or she starts blazing his own path, all of us out in the courtroom may be well and truly screwed. The potential risk is catastrophic.
And there are LOTS of smart people from other professions and occupations who I expect to fall into the first category, the influencers. If I can pick a jury with several of those on it, I'm still getting most of the potential benefit in terms of influencing the second and third groups. But when I strike a potential lawyer-juror, I've eliminated a risk, however large or small, of one juror basically making my work irrelevant because he also has a bar card in his pocket.
Most lawyers, of whatever practice type and even including nonpracticing lawyers, ought to start off with high levels of skepticism, for example, about the propriety of Cohen writing up phony invoices as if he were billing for legal work done, when he's actually applying to his client for reimbursement (plus gravy) of funds he's passed on to someone else on behalf of his client. So Trump's sidewalk argument — in effect that these WERE legal expenses, because they passed through someone who's a lawyer — is likely to strike them as offensively misleading and deeply unethical. Those of us who care about ethics despise "fixers" like Cohen — or the lawyer Trump wanted Cohen to be, Roy Cohn — even if we're not at BigLaw firms. Certainly any BigLaw lawyer in NYC would know Trump's reputation for hiring lawyers who'll tell him what he wants to hear, then eventually get fired and replaced by someone else who'll tell him that the last lawyers screwed everything up (which is what he wants to hear), who are in turn replaced until we get to the likes of Alina Habba, who first caught my attention in a TV interview in which she didn't understand that to plead is a verb, and a plea is a noun.
So I can come up with arguments why the prosecutors might have decided that taking two lawyers, a litigator and a deal lawyer (covering the waterfront nicely between them!), was an acceptable calculated risk. But I think its an incalculable, unique risk. I wouldn't have let either of these two lawyers on, even though I'd tend to agree that they'd likely be stronger prosecution jurors than defense jurors.
With the upfront disclaimer that I am now in house and no longer litigate and hold these positions without the accountability of ever having to put them into practice in the future:
Regarding intelligence of a lawyer juror, I think I'd prefer a smart lawyer over a dumb one on a jury. Maybe it's a naive view of the profession, but I think a smart lawyer would have more respect for the process than a "I'm a lawyer, fellow jurors, and I am right and you don't understand this". However, with any lawyer on a jury, there certainly would be a heightened effort to look professional, not raise stupid objections, and duly follow procedure not just to maintain credibility with the judge, but also that juror. But that all cuts both ways, as the other side's legal team will have the same issues.
On intelligence more generally, since trials are on the factual issues rather than the law, I wouldn't be so worried about someone winding up on the jury who is smarter than me --you've got to plan for that. However, I would be much more worried about someone winding up on the jury who would believe they are smarter than my experts. My understanding is that this is a particular issue for lawyers who practice in the Northern District of California (particularly for cases in the San Jose courthouse) whose jury pools are often littered with some of the brightest people in Silicon Valley.
Regarding the decision of the prosecutors in Trump's case, I think it's such a strong benefit to the prosecution for the reasons you list and more (a deal lawyer is going to despise cavalier treatment of business records; a civil litigator is going to expect reputable performances from the Trump defense and they'll have a harder time hoodwinking the jury) that it isn't particularly hard decision. I don't really view it as "an incalculable, unique risk" generally, but certainly not here -- where the "rogue juror" scenario the prosecution is most worried about is going to be whether they've picked a Trump partisan, rather than the rogue lawyer juror scenario. The prosecution is going to need unanimity, and their number one concern is not inadvertently picking someone who will never convict Trump. Couple that with all the soft benefits of having lawyers on this particular case, it seems like an easy decision.
But I go back to Trump's legal team. What were they thinking? Maybe they thought these two were the best options of lawyers if they were going to get any. Gunderson is tied closely with the VC world and represents startups largely -- maybe more sympathetic to not scrutinizing cavalier behavior to records and doing everything by the book. Hunton Andrews Kurth is a southern firm (Andrews Kurth was Houston-based, Hunton Williams Richmond-based) and may attract more right-leaning sympathetic folks and the lawyers are more likely to take on clients that white-shoe New York firms would look down on. But I'm really reading tea-leaves there, trying to justify a decision I cannot otherwise wrap my head around.
Very thoughtful! Thanks, Dave F.
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 think this is spot-on:
“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.”
We had this happen on my jury. There’s often a temptation (maybe even a tendency) to go off on tangents or discuss things that are irrelevant—e.g., jurors’ opinions on the lawyers.
I don't disagree with any of this.
But do you think only lawyers can reorient the conversation? Yes, they're likely to be particularly effective at it, and if you like the way they're reorienting the conversation, you're thrilled. If not, then not.
Give me an articulate accountant or school teacher any day. They can still be the strong opinion leaders who'll stick to the evidence and the court's charge (if that's what you're looking for; Trump's lawyers ought not be, given their case and their client).
My peremptory strikes are for eliminating those jurors I haven't been able to persuade the court to excuse who I think pose the greatest risk of leading the rest down the wrong path. I certainly don't want to spend a peremptory strike on someone who I think is likely to be a follower or an ineffective leader.
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.
Thanks for these excellent thoughts, Art! Some comments:
1. The fact that a lawyer and law professor can make it onto the jury three times, even if only one case went to verdict, supports my anecdotal sense that this happens more often than people think.
2. It's interesting that one of your cases settled. The second jury I was picked for, also a med-mal case—I mentioned during voir dire that my parents are both doctors, but said I thought I could be fair—settled right before we were sworn. (I recall that there was at least one other lawyer on that jury—coincidentally enough, the husband of a former colleague of mine from the U.S. Attorney's Office.)
The judge was very nice. He thanked us for our willingness to serve, noting that the presence of a jury often plays a very helpful role in getting cases to settle.
3. "And don't we owe it to ourselves to stay long enough to get lunch?"
On the criminal jury I served on, where we got the case on a Thursday afternoon, we had one holdout. After we got our sandwiches on Friday, her objections mysteriously vanished.
I also suspect that Friday around 2 or 3 p.m. is a time when many jurors suddenly obtain newfound clarity on cases....
A short war story from a blog post I wrote years ago, about a trial even longer ago:
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I had a jury deliberating in Judge Hugo Touche's 129th District Court in the old Civil Courts Building well into the late afternoon hours, as Hurricane Alicia approached on Thursday, August 18, 1983, with its eye already predicted — accurately, it turned out! — to pass directly over downtown Houston at about midnight. We'd done our closing arguments the prior afternoon, and our jury had started deliberating that morning at 9:00 a.m. Now we were the last folks in the courthouse; all the windows were taped, and some were boarded with plywood. But the edges of the blinds on some of the courtroom's windows still flashed red and white in crazy patterns — from the cherry-tops on the law enforcement vehicles parked to block the streets outside: Downtown Houston had been evacuated and its entrances barricaded by uniformed HPD officers.
The jury sent out a note which asked, pithily: "What happens if we don't reach a verdict before the Hurricane?"
Judge Touche wrote a reply which said, "If you cannot reach a verdict today, I will discharge you until next Tuesday." Being quite literal, the jurors interpreted "today" to mean "on this calendar day" — in other words, that he was planning to kept them deliberating until midnight! In fact, he was willing to let them go as soon as they wanted to, since it was already after 5pm. But with this incentive, we had a verdict in about four minutes. The time pressure helped move a holdout from the 9/3 vote in my client's favor that they'd been stuck on since noon, to the 10/2 required for a valid civil verdict.
Alicia was a lady to me, as Frank Sinatra might have said, or sung, if he'd had a jury out in a hurricane.
For what it is worth, after my employment trial was over, I got a friend who is a judge to ask the judge on my case if he had any idea why the lawyers put me on the jury. He said he had been curious and asked them. They told him that they thought some of the evidence in the case was complicated and it would be good to have an employment lawyer on the jury who could explain things to the other jurors. WRONG ANSWER!! I think they didn't care, because they expected to settle the case once the plaintiff sat through a few days of testimony.
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).
And have you found the lawyers to exercise disproportionate influence on the juries you’ve served on?
I haven't been on a jury with a lawyer yet, but they are always part of the pool. Maybe they're getting removed in voir dire.
I am a lawyer in DC, and while DC requires attorneys to report for jury duty (which isn't true in every jurisdiction, but would be untenable in the District for reasons you noted) the experience of both me and colleagues is that the trial lawyers are heavily disinclined towards seating us if they don't have to.
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."
GUNNERS! Love that reference.
In a kingdom of the blind, though, the one-eyed man is king. Isn't every lawyer a gunner in that context?
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.
Yes, so agreed. That's why my rule is conditioned upon my having a peremptory strike left.
Sometimes the venire is so horrible you don't have have any left. And Hizzoner asks the lawyer-venireman if he can be fair. "Of course," he replies, and you've got a one man jury. Then again, basically we assume sympathies based on addresses and ethnicity. Especially on the federal side, you have no idea who the jurors really are.
Yes, this is a significant consideration. Trump is charged with class-E felonies—the lowest level of felony in New York—and each side gets only ten peremptory challenges. Given how hostile this jury pool must be to Trump overall, it could have been foolish for Trump’s attorneys to use up a fifth of those challenges on otherwise-acceptable prospective jurors just because they were lawyers.
Agreed—a key point. I didn't follow the jury selection process in this case closely enough to know what other potential jurors Team Trump was dealing with. But I'd take a random transactional lawyer any day over the woman who posted on social media that she "wouldn’t believe Trump if his tongue were notarized."
I blush. But I'm looking forward to reading all comments.
Thanks for inspiring this post with your detailed and thoughtful comments!
The comments are AWESOME!
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..
GREAT observation! "If you're selected, Juror #B315 [aka Perry Mason], can you put aside your own legal training and experience, and apply only the law as given to you by Judge Wisdom in the charge of the court?" You'll get the expected "yes" answer, but the point is to remind Mr. Mason AND EVERYONE ELSE WHO MAKES IT ON THE JURY that Mr. Mason is just one more juror.
Spot on, Bill.
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.
Indeed, the fact that I hear attorneys frequently make claims like those Bill makes -- whatever side of the case you are on you don't want X's on the jury -- makes me worry that lawyers are frequently opposing jurors who benefit their client because the lawyer doesn't like the feeling of things being out of their control (even if more randomness and unpredictability are in their client's interest) or irrationally assumes that won't be helpful.
I hope there is some other explanation but I'm at a bit of a loss. Quite plausibly Bill meant specifically as a defense lawyer (don't mean to critisize him) but I've heard the same sentiment expressed without that reservation.
Astute comments. The generalizations presented as the arguments to refute here aren't replacements for the specific considerations necessary to make determinations in any particular case. This case is also particularly unique.
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.
I blush harder.
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!
Yeah, but how do you really feel? As for me, I am waiting for the trial, the evidence, etc. Your rant was mildly entertaining though. TY.