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Proximity to jury helps – or does it?

By: NORA LOCKWOOD TOOHER//October 29, 2010//

Proximity to jury helps – or does it?

By: NORA LOCKWOOD TOOHER//October 29, 2010//

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Boston – Mimi Coffey, a veteran criminal defense lawyer in Fort Worth, Texas, thinks prosecutors have an unfair advantage in the courtroom.

In almost every courtroom she’s been in over the past 15 years, the prosecutor is automatically seated at the table closest to the jury.

Even though there’s no law mandating it, the general rule in most courts is that the party with the burden of proof gets to sit nearest the jury. In criminal cases, that’s the prosecutor. In civil cases, the plaintiff’s attorney gets that slot.

Coffey contends that the arrangement in criminal cases favors the prosecution.

“There’s an added advantage in proximity to the jury,” she said.

According to a recent article by Coffey in the National Association of Criminal Defense Lawyers’ magazine, The Champion, jurors subconsciously identify with the party that is seated closest to them.

Being further away from jurors also makes it harder to gauge their reactions.

“The lawyer [farthest away from jurors] is not as privy to reading and responding to the jurors’ faces and body language,” she said.

So should trial lawyers be rushing to grab the table closest to the jury box? Several prominent trial lawyers and jury strategists shared their thoughts:

Mark Lanier, The Lanier Law Firm in Houston:

“I do always try to sit closest to the jury,” acknowledged Lanier, a plaintiffs’ trial lawyer.

“I am not sure it makes a difference, but I can see them better … by sitting there.”

Carl Bettinger, Shapiro, Bettinger, Case in Albuquerque, N.M.:

“It depends on the case at hand,” said Bettinger, another plaintiffs’ trial lawyer. “If I have a nice client, I would like the client closer to jury.”

On the other hand, he added, “If the defendant is scummy, I wouldn’t mind if they were close to the jury.”

But Bettinger said it’s ultimately less important where the client sits than how close he can get to the jury.

“I like to be close,” he explained. “With that proximity, I can get a better feel for them and their reactions to what is happening. Sometimes, jurors will have little movements or changing in breathing patterns that one can only pick up by being close to them.”

Jason Bloom, president, Bloom Strategic Consulting in Dallas:

Bloom said clients ask him about courtroom seating all the time. And he always gives the same answer: “There is absolutely no strategic advantage to being situated closer to the jury.”

In studying jury decision-making and courtroom communications for over 15 years, Bloom said, “I can point to nothing that even alludes to the notion that table jockeying would impact verdicts in a necessarily positive way for the party seated closest to the jury.”

In fact, he said, being close to the jury box can be disadvantageous if jurors catch clients “falling asleep, not paying attention, getting nervous about testimony or otherwise acting out of character or in disrespect for the courtroom.”

Jurors may also overhear comments, defensive chuckles or dismissive sighs from the table that could sabotage a case, Bloom added.

While lawyers and clients seated at counsel table don’t necessarily talk to the jury directly, they are communicating with them by their demeanor and non-verbal cues, he explained.

“That’s why it is important for those seated in the purview of the jury to keep a poker face and not react to the proceedings,” he noted.

Bloom’s bottom line: Proximity to the jury doesn’t matter; demeanor at counsel table does.

Anne Bremner, shareholder, Stafford, Frey, Cooper in Seattle:

Bremner isn’t an early riser, but whenever she has a trial scheduled, she gets to the courtroom early so she can get the best seat.

Courtrooms in Superior Court in King’s County, Wash., have L-shaped seating arrangements. One counsel table is situated perpendicular to the jury box; the other faces it. Bremner makes a beeline for the table that faces the jury.

“As a civil defense lawyer, I like to face the jurors so I can watch their reactions without turning my head,” she said. “Sometimes, I fight for that table.”

Federal courtrooms in Seattle have two counsel tables facing the judge, with the jury on the side.

When she’s in federal court, Bremner tries to get the table closest to the jury box so jurors can observe both her and her client throughout the trial.

“Trials aren’t just about what’s put on the witness stand,” she commented. “It’s about everything else – how a party reacts to evidence, how an attorney is prepared day-to-day. … You want to appear organized and on top of the case.”

Bryan Edelman, senior trial consultant, Jury Research Institute in Alamo, Calif.:

Over the course of a trial, other factors are more significant than where to sit, said Edelman, including opportunities to communicate directly with jurors during opening and closing statements.

“If anything,” he added, “if you’re [seated] closer you might have to be more careful if you’re whispering or writing feverish notes.  I don’t think there’s anything to suggest that just by sitting closer you’re going to build a better rapport with jurors.”

Nora Tooher can be reached at [email protected].


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