Monday, March 14, 2016

Luck of the draw in jury selection

Last week I tried to verdict in federal court a dealer termination case under Law 75. Fortunately, the jury favored my client, a Puerto Rico dealer, with an award covering 100% of the Law 75 claims.

Statistics show that 99% of federal civil cases are dismissed before reaching the jury, either by dispositive motions or settlements. In fact, my last Law 75 federal jury trial, representing the manufacturer, had been 6 years ago, and I settled before the jury took the case. The Casco v. John Deere case I tried last week, after three years of intense litigation against competent defense counsel, was the first Law 75 case to reach a jury in many years. Mind you that, while a lot of Law 75 cases are bench-tried in the local courts, there's no right to trial by jury in Puerto Rico and the only civil jury cases are heard in the federal court. And, the civil cases tried in our federal district court in Puerto Rico are few and far between and almost none is a commercial case. Criminal cases overwhelm the federal docket and there is no time or judicial resources for the few labor employment or civil rights cases that actually get tried.

It is no wonder then that the art of trying a case before a jury is getting lost. Even more perplexing, is the jury selection process in which lawyers get no meaningful participation in the voir dire to question the venire and the jurors that actually get picked are more of a lucky draw than a consciencious or scientific effort at jury selection.

Jury cases of Law 75 claims are so rare, that I'd like to share my insights into the backgrounds of the jurors that actually tried our case and the jurors who unanimously found for the dealer. These thoughts never get published except by word of mouth from some of the older or more experienced members of our federal bar.

Jury venire in the Casco v. John Deere case was composed of roughly 36 candidates. Some were excused for cause, either for medical reasons or some had prior travel arrangements or commitments or knew the lawyers or their law firms etc. For example, one of the potential jurors worked as a clerk for my firm's external auditors and was stricken for cause. From those who remained after 3 peremptories or strikes per side, the jury was initially composed of 4 men and 4 women. After a number of back-to-back recesses called by the Judge mid-trial, a middle-aged female juror had become sick or extenuated, from two weeks of trial or most likely after eating a federal lunch pack, and was rightly excused for cause. The remaining 4 men and 3 women were representive of all walks of life. We had an administrative assistant of a multinational corporation, two engineers, an attendant of an auto parts store, a public school physical education teacher, an accounts receivable clerk in a newspaper, and a housewife. There were no accountants or financial analysts per se in the jury, except perhaps for the accounts receivable clerk who must have known basic math and the engineers who have a fuller understanding of science and mathematics. I don't think, however, the two engineers had post-graduate degrees. Although their age was not disclosed, I guess that most were between the ages of 32-55. All lived in different municipalities across all over Puerto Rico, except for one juror from San Juan. As expected, fluency in English was mixed. The Judge required the second venire (the second pool of jurors who are left after others from the first badge are excused for cause) to read out loud on the record their responses to a set of a few boilerplate questions, such as, where they live and work and what their family members do for a living. Most of the jurors were naturally so soft-spoken in the intimidating courtroom environment that at least I could barely hear what they said. From what may have been a 20 second narrative by each of roughly 20 persons, the lawyers are supposed to discern all the facts to make an informed judgment to select the jury. No interrogation by counsel is allowed. Also, from this brief narrative, which is the only words ever spoken by a juror in the case, except for an individual assent to the verdict after a poll, you can tell about their fluency in English, sort of. In this case, jurors clearly spoke and understood English but not as a first language but some were actually very fluent. I'd say most spoke English like most Puertorricans do as a second language. The only common denominator, that may or may not have been relevant, is that none of the jurors had served before in any other case, civil or criminal, which implies that all had a fresh or open mind and were not contaminated by experiences in other cases. Judgment came after more than two hours of deliberations.

Full of energy and enthusiasm after eating their nutritious federal lunch packs, our jury reached a unanimous verdict before the rush hour on a sunny Friday afternoon and left the court for home.