From the Bench. True Tales from the Jury Room

• Author: Hon. Virginia Kendall
• Pages: 6-11

From the Bench

Published in Litigation, Volume 48, Number 1, Fall 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 6

HON. VIRGINIA KENDALL

The author is an associate editor of Litigation and a U.S. district judge for the Northern District of Illinois.

In the federal building where I sit, my jury

room is right next to my chambers. The

back office where I work shares a wall and

radiators with the jury room. Often when

I am writing, I can hear the rise and fall

of their voices. I cannot hear what they

are saying, but I certainly hear the ten-

or. Bursts of laughter are always a good

thing—the jury is getting along and en-

joying the process of finally being able to

talk about what they’ve seen and heard.

Raised voices followed by long silences

do not portend well. Nothing is more scin

-

tillating for a trial lawyer than trying to

read the tea leaves of a jury: “Oh, she did

not like him. Did you see her face?” “He

would not even look at that guy while he

was testifying.” Yet, many trial judges have

the pleasure of actually talking to jurors

after they reach their verdicts. These in-

sights are sometimes shared with lawyers

and other times kept within the confines

of the chambers.

I gathered a posse of colleagues from

the Northern District of Illinois who col-

lectively have tried hundreds of cases,

and I asked them to tell me their most

frequent juror comments. OK, truth is, I

hijacked the weekly coffee by Zoom, but

they were surprisingly generous to me in

spite of it. The comments began calmly

enough, but by the 20-minute mark, the

war stories began pouring in and laugh-

ter took over. So here, trial lawyers, are

the top inquiries and comments made by

jurors after verdict.

1. “Did we get it right?” Jurors want to

do the right thing. They are put together

in a room with strangers, forbidden to talk

about the case for days, if not weeks, until

it is time to deliberate. They just want as-

surance that all of that attention and hard

work did not go to waste. They want affir-

mation. Most judges validate them, not by

saying that the judge would have decided

that way, but rather by assuring them that

the role they played was exactly what a

jury of peers is about. Yet, one judge re-

called meeting a juror on the street after a

verdict for the defense in an employment

discrimination case who was very up-

set. He said, “I did the wrong thing.” The

judge recalled that she had allowed the at-

torneys to talk with the jury, and after that

conversation, the juror (correctly in the

judge’s view) saw that he had misunder-

stood the law. The judge said: “It was sad.

Of course, I assured him that he shouldn’t

worry because he did what he thought was

right at the time—or something to that ef-

fect. But I’ve always felt bad about that

case because the plaintiff’s cause was just.”

2. “Why was I picked to serve?” It is hard

to tell them the truth: You were the lesser

of evils. You really were not selected so

much as you were not stricken. You were

the safest bet and so they did not strike

you. You were the middle ground and

not the fringe. That should make you feel

pretty good, because you are the fair and

impartial juror.

3. They notice what you wear. One judge

regaled us with this little gem: Her jury

was worried about the prosecutor. She

inquired why and was told, “Well, he

stopped wearing his wedding ring half-

way through the trial!” Sure enough, they

had noticed this, and sure enough, their

instincts were correct: The prosecutor

and his trial partner were now an item.

Yes, jurors notice your scuffed shoes, your

crumpled tie, your mussed hair, and that

blue plastic pen cap that you chewed on

and twisted into contortions every day—

and they keep a tally: 12 pens. They also

notice your jewelry (wedding rings espe-

cially), and they look forward to your out-

fits if you are a spiffy dresser. If you get a

haircut, change your hairstyle, shave your

beard—you are the talk of the jury room.

After all, they cannot talk about the wit-

nesses, the case, or the evidence, so the

lawyers are fair game.

TRUE TALES FROM THE

JURY ROOM: CHEWING

YOUR PEN CAPS AND

OTHER TRIAL

ATTORNEY BLUNDERS

CATCH JUROR

ATTENTION