Jury Tips

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Milwaukee County Circuit Court Judge Paul Van Grunsven tells litigators to beware of unconscious mannerisms that could distract or even offend jurors. Van Grunsven’s comments came during the Civil Trial Counsel of Wisconsin’s annual conference in Wisconsin Dells. Wisconsin Law Journal Photo/Tony Anderson

If you want to win your case, don’t flip-off the jury.

It seems an obvious point, which should not even require mentioning. But Milwaukee County Circuit Court Judge Paul Van Grunsven recounted a case where jurors were offended because they felt counsel was being disrespectful during his closing argument.

In reality, the attorney simply had an awkward mannerism. He unconsciously and repeatedly pushed the bridge of his glasses up his nose using his middle finger. Jurors mistook the action for an offensive gesture, which influenced their perception of the attorney and his case.

Van Grunsven, who spent 18 years as a litigator and has been on the bench for nearly two years, stressed the importance of attorneys being attuned to any unusual mannerisms, which might come out during trial. His comments came during a presentation on juries to members of the Civil Trial Counsel of Wisconsin when he offered 12 tips for working with juries.

The veteran litigator noted that he has learned a great deal from talking with jurors in his judicial capacity in the nearly 70 cases he has presided over. He noted that jurors often tell the judge things after the case concludes that they would never share with the attorneys.

“I’ve seen jurors who will tell me that a lawyer in a given case was just a complete idiot, a bumbling fool and then walk out into the hallway and the lawyer is waiting there to talk to them. [The attorney says], ‘Just tell me a little bit about why you did what you did.’ And they say, ‘You were just great; we all loved you.’ You don’t get a fair perspective — the judge does.”

Show Jurors the Evidence

In addition to his warning about un-conscious mannerisms, Van Grunsven offered a variety of other things to keep in mind. Referring to one of the biggest criticisms he has heard, the judge noted the importance of showing jurors the exhibits that have been marked and moved into evidence.

“One of the things that frustrates jurors is lawyers and witnesses and judges who are talking about exhibits that the jurors never have the chance to see,” he said. “They love to see this stuff. If it’s a piece of evidence that you feel is important to present at trial, take the time to show it to them.”

Next, realize that jurors hear the names of every potential witness as the list is read. If a witness will not be appearing, he stressed the importance of telling the jury why.

“When you try your cases, recognize who may be mentioned and be prepared to explain, within the bounds of our rules of evidence, why that
witness isn’t there,” Van Grunsven said.

If someone who would be helpful to a case is not present and the attorney fails to explain the absence, jurors will decide that the missing person probably had something negative to say about the case, he said.

In an era marked by scores of legal shows on television, jurors are expecting every attorney to bring the perfect case. They expect any witness with any knowledge about the case will be there to help them decide the verdict.

Don’t Annoy Jurors

Once again, the judge reiterated the importance of avoiding actions, which might be perceived negatively by the jury.

“As trial lawyers, we may develop habits or mannerisms that we may not know about,” Van Grunsven said. “We need to develop thick enough skin to have our colleagues or friends tell us something that may grate on the nerves of jurors.”

He recounted the repetitive response, “OK,” which an attorney gave after every answer he received from a witnesses. Jurors actually started mouthing the word following every witness’s response in anticipation of the attorney’s comment.

Another warning involved a desire by some attorneys to oversell their case. He urged attorneys not to make hollow promises about things they would prove during the case.

“If you promise in your opening statement that you will prove A, B and C, you darn well better be able to prove A, B and C,” Van Grunsven warned. “They will remember your promise. If you don’t meet that promise, they will hold it against you.”

The suggestion is simple — don’t make promises that you cannot keep.

Next, Van Grunsven warned against using leading questions with witnesses. It has the potential to turn off juries. They want to hear the evidence from the witnesses themselves, not the attorneys.

“I have had jurors tell me that they would have preferred that the attorney in my courtroom simply take the witness stand and put the witness at the attorney’s table,” he said. He noted that the attorney provided a list of leading questions with the witness simply responding, “Yes.”

The judge acknowledged there were times when leading questions were used for expediency’s sake, to lay the foundation for something else. However, he warned against relying solely on leading questions.

Jurors See Everything

He also noted that lawyers need to be aware of the 12 pairs of eyes watching everything in the courtroom. They see, and often hear, things going on during sidebars. They note the reactions of attorneys and their clients to things that happen in the courtroom. Even if only three jurors notice something, they will surely discuss it with the other jurors during deliberations.

“You need to have the courage to tell the judge if you believe the jurors can hear everything and you’d like to move the sidebar into chambers,” Van Grunsven said. Later, he added, “Advise your clients to be careful about facial expressions or reactions.”

When it comes to voir dire, the judge said attorneys need to respect a juror’s desire for anonymity. That is becoming a growing concern among jurors, he explained, noting that they will respond to questions about where they live by saying, “I live in northern Milwaukee.” Questions about where they work will be answered with the vague response, “I’m a machinist.”

“Jurors for whatever reasons are very, very concerned about retribution for their verdicts,” Van Grunsven said. “Listen to the way they respond to voir dire questions. If they seem vague, respect their need for anonymity the best you can, while getting the information you need.”

“I’ve had jurors actually tell me they believe that every jury is like the book “Runaway Jury” where they felt that they were under constant surveillance,” he said.

Attorneys need to determine when they are able to get the information they need during voir dire without turning the juror again themselves or their clients.

Help Jurors Decide

Once attorneys have their jury panel they face the challenge of establishing the credibility of their experts or witnesses, the judge explained.

“One of the hardest things for jurors to resolve is the case where you have conflicting opinions from experts,” Van Grunsven said.

Jurors wrestle with the issue of credibility and it can hold them up during delibe
rations. That is particularly true in a he-said-she-said case. Attorneys need to clearly lay out why their experts or witnesses are more credible.

Another point where the jury panel can get held up is wrestling with the burden of proof determination.

“I can’t tell you the number of cases where jurors were on the fence and didn’t know which way to go,” Van Grunsven said. “Ultimately, they came down not guilty on a criminal case simply because the state hadn’t met the burden of proof.”

In some cases, jurors have admitted they believed the individual was guilty, but the burden of proof had not been met. Attorneys need to clearly state the reasons that one side or the other has or has not met the burden of proof in the case.

Next, it is important for attorneys to realize that common sense will triumph over complex legal machinations. When it comes right down to it, jurors will look for an answer that incorporates common sense.

As he prepared to conclude, Van Grunsven gave the room full of lawyers the cold hard truth — “lawyers seldom win or lose cases.” Ultimately, juries will decide a case based on the evidence rather than their feelings about an individual lawyer.

Finally, he said lawyers need to “be efficient and minimize down time.”

“The one thing that really ticks off jurors is sitting up in the jury room for extended periods of time,” the judge explained.

If they see that judges and lawyers are being efficient, they will be much more patient with the process. If they perceive that their time is being wasted, it will affect the way they feel about the case and the participants.

“Their time is valuable,” he explained. “They expect that when they are in the courtroom, they are going to work efficiently. The last thing you want is an angry jury deciding your case.”

If they see an attorney working efficiently and respecting their time, it will benefit the client.