You don’t win jury trials from speaking, you win trials through listening. Before I was a patent attorney, I was a felony criminal prosecutor. It was a detour to my career in intellectual property and one of my best memories.
In law school at the University of Florida, I took a criminal trial clinic that allowed me to try criminal cases in Ocala under the “student practice rule.” I lost my first bench (non-jury) trial on a constructive possession of marijuana case. My girlfriend at the time (now wife of almost 25 years) had a suggestion. Her mom was a motivational speaker (Sheryl Nicholson). I didn’t want to lose my next case, so I drove down to Tampa from Gainesville. I wanted all the help I could get.
Learning to Listen
There were two things I recall like it was yesterday: (1) remember the names of the jurors; and (2) listen to everything they have to say in voir dire. Sheryl (Mom) had me associate a physical feature of the juror with their name. An old trick but it worked. If juror #4 was named “Mack Silver” I would imagine him driving a Mack truck with a big silver grill.
When my next trial came up, it was a big one. For a misdemeanor attorney (a “student” attorney at that) I got a DUI case. They are the most complicated and heavily litigated cases apart from felonies. Not only that, it was a terrible DUI case for the State Attorney. The defendant had prior DUI convictions and knew what to do. She refused all breath and field sobriety tests. The only evidence we had were the observations of the deputy. And it got worse….
My Adversary and the Seating Chart
The defense attorney was the former chief assistant state attorney in Ocala. Here I was, still a third-year law student, preparing my first jury trial on a case with very little evidence and headed up against one of the most experienced attorneys in Marion County. I was nervous. As the judge called in the jury pool for selection my heart felt like I had just finished a 10k race.
Each attorney received a paper with the prospective juror names. They were arranged in a grid pattern to align with where they were seated. The defense attorney went first. He was confident and smooth. However, he had to look back and forth from the seating chart to address each juror. That caused him to lose eye contact and disrupt the rhythm of his questions.
While the defense attorney conducted his voir dire of the jury pool, I memorized the names of each person on the panel. Back and forth I would find some feature to associate with their name. For thirty minutes I did this until I had their names locked down. Now what? What would I ask them?
My First Jury Selection
This DUI case came down to visible intoxication. What did the deputy see, smell and observe? I had a plan but I was still nervous. The judge looked at me and told me it was my turn to question the panel. To the surprise of my supervisor, my fellow law students observing, and the defense attorney, I left the seating chart on the prosecution table.
With nothing in my hands I stood in the center of the courtroom and asked each juror, by name about their occupation, experience and background. I had nothing to shift my gaze, no paper to write on….so I listened. I made eye contact with them that didn’t break. The nervousness was gone. They unfolded their arms and offered far more information to me than to defense counsel. I asked them how much they ever had to drink. One Air Force captain had 35 beers in one day. Another juror had 10 highballs. Another had six whiskeys in half an hour. It was easy to remember because I had no other distractions.
The trial went by quickly. The defendant did not testify and my arresting deputy wore a dark green suit with bright gold chains around his neck. I though he was going to wear his uniform but he was inordinately proud of this suit. I told him he looked like an FBI agent. He beamed. On the stand, I asked him about the defendant’s driving, her balance, her speech and the smell of her breath. That’s all I had. The prosecution rested.
In his closing argument, the defense attorney railed against the lack of evidence. No video, no breath tests and only a single deputy’s testimony. But he made no connection with the jury. He didn’t know their names. They were numbers to him. He didn’t listen to what they said in voir dire.
My Closing Argument
In my close, I stood up. Nothing in my hands. I pointed out to the jury that in their past states of intoxication, there was little doubt they could operate a vehicle safely. “Whether you had 35 beers, 10 highballs or six whiskeys….your balance is off, your breath smells like alcohol and you slur your words.” As I ticked off each “drinking record” I made eye contact with that particular juror. Each one knew I listened to them. I remembered everything they said.
I sat down. The judge sent the jurors out for deliberations. My supervisor came back and said the defendant was willing to plead to a “reckless driving” charge but do all the probation, fines and community service associated with a DUI conviction. The decision to accept the plea was mine… a third year law student. It would have been smart to take the plea deal. However, I also felt an obligation to the jury. They gave up their entire day and observed the trial dutifully. I felt it would be wrong to take the decision out of their hands. I told my supervisor we should let the jury decide. He raised his eyebrows, smiled and said “okay.”
Less than an hour went by. We got the call. The jury had reached a verdict. Usually, quick verdicts are “not-guilty” decisions. My fellow students and half of all the prosecutors crowded the courtroom. We stood as the jury walked in and sat down.
The judge asked if they had reached a verdict. “Yes” replied the Air Force captain…not a surprising choice for the foreman. We all stood as the bailiff walked the verdict form to the judge who reviewed it and passed it to clerk. My heart was beating out of my chest. The clerk read from the form, “we the jury find the defendant….guilty.” A wave of relief passed over me. The jury was thanked and dismissed.
Speaking Less….Listening More
I knew that day I had learned a life-changing lesson. Listening is the most important skill we can develop as a trial attorney. I paused my career in intellectual property to try criminal cases in Pinellas County, Florida for three years. I respected and listened to my arresting officers, witnesses, victims, defense attorneys and even the defendant. This was a powerful advantage in trial.
I also observed how jurors would come into the courtroom with a verdict. If they were smiling, the verdict was “not guilty.” If they looked grim, it was a guilty verdict. Why? Because judging someone is a burden and holding them accountable is not fun. I started my opening and closing arguments from that point out telling jurors when they return with a guilty verdict they will not smile or be happy. It is a burden and responsibility. I had “listened” to their body language and facial expressions. It made a powerful difference in my success in trial.
Twenty-two years later, I still keep all this in mind. As a patent and trademark attorney, we engage patent examiners and trademark examining attorneys on a daily basis. Before the Patent Trial and Appeal Board (in IPR proceedings) the judges ask detailed and pertinent questions. I still remind myself to listen to what they have to say first. Do not formulate the counter-argument until their position is fully appreciated. Lawyers are known for speaking, but winning comes from listening. As my grandfather used to say, we have two ears and one mouth for a reason.