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Robbins: Jury or no jury?

Dec. 3 of last year was my anniversary. As of that date, I had been practicing law for 40 years, the first 10 or so in California and the last 30-plus in Colorado.  As you may imagine, in four decades, I have seen it all.

I had a client once who was so good-looking, she hurt the eyes to look at. A male counterpart several years later was her eye-straining male equal. Another reminded me of a grizzly coming out of hibernation, both in his appearance and owing to his ceaseless growl. I have seen and represented priests and penitents, schoolmarms, cowboys, boy scouts, librarians, strippers, actors, nurses, doctors, masons, mechanics, scallywags and scoundrels, captains of industry, trust funders, working blokes, a guy who might have been “the most interesting man in the world”, and everything in between.

Many of these were — or were about to become — litigants.



What they all had in common — besides something that needed fixin’ — was a strategy that suited them. Not only did the strategy include a cool assessment of the facts and application of the law, but in each case there were — and always are — intangibles that, by the alchemy of experience, convert the sterile science of the law to art. Stuff they only hinted at in law school.

Cool.

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But what does the aforesaid have to do with juries?

It’s this.

Jury consultants (yes, such a profession does exist) and seasoned trial lawyers alike will both swear over brats and beers that a key, if not the most important part of the trial, is picking the right jury. Although I have covered this in greater detail in prior columns, suffice it here to say that the process of voir dire affords trial attorneys great latitude in molding the composition of a jury to their liking. Empaneling a jury emphatically is not, as you may imagine, just plunking in the jury box the first six (or 12, depending on the type of trial) citizens who trip in through the courthouse doors.

But jury or no jury? That sometimes is the greater question than the jury’s composition.

As you might imagine, there are some parameters within which this particular game of legal chess must be played. In the main, minor offenses potentially excluded, criminal matters are conducted before a jury of one’s peers. The Sixth Amendment to the U.S. Constitution assures that this is so. 

Domestic matters — custody, divorce, and other family law matters — on the other hand are “bench” proceedings; before a judge and not a jury. In the vast bulk of other civil matters (that is, matters that are not criminal in nature), the choice of judge or jury lies with the litigants themselves. One can choose, or not, to try the matter to the court or, instead, to lay the facts out to a jury.

Speaking perhaps overly broadly, the assessment often goes something like this: if the lawyer feels that his or her client will engender sympathy before a jury or will generally be liked, then the equation may be to so cast one’s fate. If, on the other hand, one’s client is a scrooge, or in some other way dislikeable, the greater valor may lie in reserving trial to a judge who — presumably at least — will be less influenced by quirks of personality. Too, sometimes a matter is so dry or technical, a lawyer may fear that a jury may become either bored or lost. In such case, the matter may be better suited to trial before the “bench.”

I am certain that I am not the only courthouse habitué who has seen a juror swimming upstream against the force of gravity and ultimately nod off in the box.

So what does all this have to do with my easy-on-the-eyes clients and the one who was reminiscent of a grizzly?

With the first two, I had a frank discussion. “Your looks could cut both ways,” I say,  “A juror or two might be beguiled by them. On the other hand, a juror may resent you for them. Or else you remind him/her of his or her spouse’s ex and engender some ill will. A gambler’s choice,” I said.  With the grizzly guy, the discussion was less frank. What I didn’t want to say was that the jury wouldn’t like his grumbling self. What I said instead was I thought it better if we tried the matter to the judge.

Some clients are so delightful, so believable, so thoroughly endearing that not to march them out before a jury would almost be a crime. 

At times like this, it’s art, not law that dictates. As I have said time and again in these columns, law is a human enterprise. As such, to practice it effectively, one must consider the nature, prejudices, and proclivities of those to whom a matter is presented and to divine as much as possible the most productive course to steer the client to a safe and satisfactory harbor.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.   


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