LESSON 9

Inside Civil Litigation 2: Jury Selection and Jury Trial

 

The Previous Lesson used a case example to demonstrate how a judge conducts a court trial.  The case example in this Lesson is to look into the procedure in a trial by jury as well as the role and function of the attorney in this type of trial.

 

Section 1.  Jury Trial - Brothers fighting for property

 

Subsection 1.1.  Accepting the employment of client - talking about money is so cold

 

When the new immigrant family first arrive in the United States, the members can unite and build a place just to put down their feet. As time goes on, they start going their separate ways.  The families that share adversity with unity but cannot share peace and prosperity are definitely not uncommon. Society and culture change, and family values also change. But this happens not only in America. The cases in which parents sue their sons and daughters demanding compensation, previously unimaginable, are now reported in China and Hong Kong. The result is that the sons and daughters return the money to the parents, but their relationship is terminated from then on. 

 

Big Brother Shi (hereinafter "Big Brother") is a new immigrant. After arriving in the United States he hired a lawyer a few years ago and filed a civil lawsuit against his younger brother Shi (hereinafter "Little Shi") and his wife. Big Brother's complaint stated in substance that ten years previously he had wire transferred from Hong Kong three hundred American dollars to Little Shi and asked him to buy a house for him. Little Shi orally agreed and purchased a suburban house but took ownership of it, giving a reason that only if the house were under the names of himself and his wife would there be a tax deduction. Big Brother alleged in the complaint that Little Shi defrauded him and demanded that Little Shi fulfill the oral contract from years ago and return the house to the original owner and pay damages.

 

Little Shi went to see lawyer Mr. Zhang and said that before Big Brother filed a complaint, many relatives and friends tried to mediate between the brothers without success. It appeared that Big Brother was adamantly determined to destroy Little Shi completely.

 

After Mr. Zhang studied the facts and the documents, he confirmed that Little Shi was innocent. He comforted the saddened Little Shi: "A family dispute over money is similar to a divorce. The fight is not just about money. Hatred, jealousy, betrayal and other emotional factors are frequently involved. They cannot be resolved by reasoning alone. You are the defendant. To protect your home, you can only stand up and fight. However, sorry to say, "paying big money to shield from a big disaster" is inevitable".

 

Like other experienced lawyers, the first consideration of Mr. Zhang was money. Except the traffic accident sharing contingency fees type of cases, the first requirement of litigation is money.

 

Not having money is like going to war with one hand tied behind the back; even the strongest case will end in surrender.  In addition to paying the lawyer, cash is needed during the phase of discovery to pay court reporter, interpreter, copying and other expenses. The client will have to be prepared. In short, given the economic resources of Little Shi, basically he would be throwing everything he had at this litigation. In a mutually destructive type of lawsuit, where neither side had insurance, all legal fees came from their own pockets.  What was the source of funds that enabled Big Brother to litigate? How did he compute the risk and reward? It was a mystery to Little Shi and Mr. Zhang.

 

We are using this property dispute between brothers for the purpose of studying jury trial in American litigations. Therefore, from the moment Mr. Zhang agreed to represent Little Shih, the preparations made in phases 1 to 6 are similar to those in the foregoing Lesson so they are skipped over here. What is different from a traffic damages case is that at phase 7, Mr. Zhang chose a jury trial.

Subsection 1.2.  Prelude to a Jury Trial

 

The preparation for a jury trial is not only complex and heavy, it has to be done early, at least within 60 days from the scheduled trial date. The court mandates a series of reports that the attorneys from both sides must complete by the deadlines. The lawyer also needs to organize  and digest the testimonies of witnesses in deposition transcripts and documents collected over two years. Further, he needs to prepare a number of pretrial motions, (also called motion in limine)  The purpose of these motions is to present to the trial judge in advance the foreseeable arguments over the law and evidence;  those need to be settled before the selection of the jury.

 

At this point, we can compare the difference between a court trial and a jury trial specifically:

1.  In a court trial, the lawyer only has to persuade one person; in a jury trial he needs to                  persuade 12 people, or at least 9 people.

2.  When a group of twelve strangers are suddenly put together to confer and make decisions, it      often will take several days. To wait for the jury for several days will cost the client a                    substantial sum of money to pay the lawyer If the jury cannot reach at least a 9 to 3 decision

     and end up with a hung jury, the case may need to be retried. The blood and sweat and

     money that have been expended are completely in vain.

3.  The jury need instructions by the judge.

4.  The selection of a jury is a big topic. Not only does it take time, careful consideration is also      required. The opening statement and the closing arguments are very demanding tasks

     requiring concentrated effort, and blood and sweat.

5.  Overall, a court trial that requires 5 days of a judge's time is almost equal 15 days of a jury

     trial. If interpreters are needed for witnesses, the time required is even longer.

 

It is because a jury trial takes several times the time and resources, it happens only in less than 1% of all the civil cases. Many American lawyers who have practiced for decades may have limited experience in jury trial, and sometimes none at all.

 

Subsection 1.3.  Appointing a Trial Judge - The First Day

 

On the day set for trial, Mr. Zhang again returned to the courtroom of the Presiding Judge of the San Francisco Superior Court to await assignment. The court was still jam packed. When it was the turn of Mr. Zhang's group, the Presiding Judge knew that, according to the estimate of Zhang and opposing counsel Mr. Brown, the jury trial would take about 20 days. So he said:  there is definitely no court available this week; you can come back next Monday. A week later, the Presiding Judge assigned Mr. Zhang's group to the court of Judge Collins.

 

The attorneys of both sides met Judge Collins and presented their trial briefs, which summarized the facts, law, and evidence of this particular case.  After the judge read the briefs, he called the attorneys into his private chamber and said, "I have read the briefs. Before trial commences, do you feel that there is still a chance for settlement?" Both attorneys said no. The judge then said, "All right, you can present the pretrial motions, the stipulations for trial, the questionnaires for the jurors, the jury instructions; all of them now".

 

After receiving the attorneys' motions and stipulations, the judge said that: Based on my preliminary review, the case is still messy and disorganized. Before you straighten them up, I will not waste the jury's time. For the time being, I set tomorrow for you to make oral arguments about your motions, and then I decide the time to begin the selection of jury.

 

Subsection 1.4.  The Strategies of the Attorneys from Both Sides

 

After being assigned to a trial judge, this dispute among brothers for property finally began to take shape.  Let us see what the strategies were for both sides. Were they going to pound on the law, the facts, or pound on the table?

 

The attorney for Big Brother was named Mr. Brown. He knew that the law and the specific evidence on his own side were comparatively weak, so he needed to create a smoke screen.  The story he would tell the jury would concentrate on the several decades of relations between Big Brother and Little Shi, starting with how Big Brother brought up Little Shi till adulthood, and how he trusted Little Shi. The focus was also on numerous documents such as old checks and bank statements and financial transactions, to prove that the brothers were always indivisible in financial transactions. If the jury were moved by the story and sympathize with Big Brother, his story of wire transferring three hundred thousand dollars to Little Shi to buy a house for himself would become credible.

 

Having settled on a trial strategy, what kind of jurors would Mr. Brown want to have on the jury? They should be persons who had similar background as Big Brother, or at least they are older immigrants who would empathize with the predicament of Big Brother, or second and third generation immigrants, younger but still familiar with the old generation who tended to rely on trust and not on the written words in their way of doing business. The more professional people who were more objective and emphasize the facts are unfavorable for Big Brother.

　　　

By contrast to Mr. Brown, Mr. Zhang believed that the laws and the specific evidence favored Little Shi. The story he would tell the jury would concentrate on the specific evidence. As long as the jury were not confused by the smoke screen of Mr. Brown and analyze the evidence objectively, Little Shi were certain to win.

　　

Having settled on a trial strategy, what kind of people did Mr. Zhang want to select as jurors?  The most ideal should be professional persons such as accountant, doctor, and realtor who would not be swayed by emotions, who were more objective and emphasize documentary evidence, or Americans born and raised in this country. Mr. Zhang and his assistant created a point scale. If a person had favorable factor such as a professional background or realtor experience, one point is given. Older immigrant was a negative factor and given one negative point.  If English was not proficient, the factor would be given a minus one point. The jurors with the most points were the best. Those with zero point would be barely acceptable. Those with negative point would be excluded.

 

Subsection 1.5.  Trial Judge Handles the First Stage of the Dispute

 

In the second day of trial, the attorneys argued in court their respective motions. Judge Collins said he would wait another day before deciding. But he gave the attorneys on both side (each side had two attorneys) a tough lecture. He said, "You have over two thousand pages of documents; most of them are irrelevant or duplicates. If they are given to the jury without organizing, and you add on the interpreters' time, the trial will take more than a month! No, it will not work!  I am giving you till end of today to organize the messy materials and work out a trial stipulation about the facts of the case, put together a stipulation of timeline for the events of the case, and an exhibit list. When you cannot agree, I will take over and resolve!" After listening to the lecture by the judge, Mr. Zhang felt that he was wronged but could not complain, because all the numerous, irrelevant documents and disorganization were intentionally created by Mr. Brown to confuse, to cover up the weaknesses of his evidence, and to slip in something favorable. Mr. Zhang had objected strenuously many times. Still, now that the judge made decisions, it was easier to get things done, even if he were made wrongfully a target of the judge's lecture.

 

Under great pressure of the judge, the two sides worked late into the night to finish a stipulated agreement. However, during the trial, working late nights each day was absolutely to be expected .