When I received my jury summons last December, I thought there had been a mistake. Aren’t lawyers exempt? I protested and tried to get out of it on compassionate – or any – grounds. I had a new business to run, and my staff needed me (although as it turned out, they didn’t). But, as Joe Louis famously said, ‘you can run, but you can’t hide’, and I ended up doing my bit for justice after all.
Once I had given in to the idea and said goodbye to two weeks’ fee income, I started to warm to the notion of service. Not initially out of a sense of civic duty I’m afraid, but out of curiosity. After a working life of knocking on seemingly endless doors as a litigator, I wondered: what would it feel like to be the one who must be persuaded? Instead of constantly currying favour, nervously on the go, my entire persona would take on the characteristics of power.
I would recline in my seat, arch my eyebrows sardonically, and pull faces, hands folded in front of me as my thumbs twirled petulantly and expectantly. I could give off those annoying contrary signals that some judges let slip, leaving advocates in purgatory – was that a grimace or a grin? Is that brightly coloured tie on day two a sign which I should heed?
The first thing I noticed on arrival at court was how genuinely diverse the assembled jurors were. Contrary to rumours that only those with nothing better to do sit on juries, the waiting room was a healthy cross-section of society, and there was a pervading mood of diligence and purpose in the air which was really quite infectious. In addition to no fewer than three lawyers, we had a hairdresser and a man who prepared fantasy birthday settings for the fabulously rich.
As soon as we were called into court, I was grabbed by the intensity of a serious criminal trial in waiting. The atmosphere was so tense in the court room you could almost reach out and prod it. Sitting behind a glass screen was the defendant, a smart-looking man in his mid-thirties accused of a sexual crime. He looked dreadful; charged with fear and visibly reddening under the pressure of being the ‘accused’.
Then I started eyeing up the scene, and the lawyers in particular. The judge was as one would expect: absolutely archetypal in the best possible sense; quietly spoken, clear, impartial and respectful of everyone in the room. I noticed his tendency to suddenly crane his neck and widen his eyes when something important was going on – a bit like a meerkat sensing a predator.
But the lawyers down there – in the pit – were a mixed bunch. It was fascinating to watch them, for the first time, as ‘Joe Public’ must. David Attenborough should have provided a voiceover as they preened around, each with their own special arrangements: cufflinks, retractable lecterns, multiple colour coding and page-tagging devices, pretending not to eye us, or one another, up, and feigning nonchalance when they were probably a bit nervous. All this was doubly interesting to me. I wanted to understand the case, of course, but, equally, I wanted to know what ordinary folk think of us as we go about the art of persuasion.
Certainly, the prosecution team did not present well. For a start, there were too many of them. Stacked behind counsel there was a bored horde, a bit like those people who troop around after some celebrities; a phalanx of police officers, legal clerks and someone of no particular purpose whatsoever. Collectively, they gave the impression of heavy-handed apathy.
Contrast the poor defence, alone with no suggestion of clerks or gofers, running a tight ship. When the defence shone, it was a true underdog moment that had us forward in our seats. Defence counsel began his opening speech standing near to us, and we were able to inspect him minutely. A gap in his front teeth, with a gold cap, caused a slight whistling noise as he spoke. And was that a south London twang we heard? He mixed his ‘was’ with his ‘were’. But these foibles were actually, and paradoxically, very persuasive in their own right. I wondered how he was able to put a case together and promote it so practically and effectively all by himself – though of course, being alone is often easier, with no cats to herd. And he knew his case back to front.
As the trial got under way, it was really a race between two asserted truths. And it wasn’t very long before the down-at-heel defence counsel started to consolidate his lead. The glass plate behind which his client so poignantly sat seemed obscene and gratuitous next to the special protections afforded to the complainant (she too had a team of helpers – again busy doing nothing). The sheer imbalance of the structure of the courtroom and the numbers ganged up on this man did not seem right. Surely, this man was presumed innocent for the time being, so why sit him there like a genocidal war criminal? It all seemed monstrously imbalanced.
In cross-examination, defence counsel unveiled several factors that weighed against the complainant’s evidence. Defence counsel engaged the empathy of the listener and he positioned our understanding with helpful milestones: ‘I am going to talk to you about three things’; ‘my closing speech will last one hour’. These stylistic points were greatly appreciated by me, settling the listener into the rhythm of his thinking.
Other advocates seemed to have no understanding of the need for structure or endings, relevance or proportionality. Like the Ancient Mariner on steroids, they would fix us with a ‘glittering eye’, an epic tale to tell (actually, I think I did that myself recently at an employment tribunal). But the defence counsel positioned himself well. Hands in front of his chest, palms outwards, invoking us to think, as if he was tangibly pushing thoughts our way. He wanted to empower us, providing tools so we could go away and complete an important job without him. Only once did he slip up. In cross-examining a witness, having destroyed her evidence, he went one step too far by reducing her to tears.
On the prosecution side, one counsel slipped up when cross-examining a nurse, by getting haughty when the witness quietly asked about the relevance of the question. The barrister announced that she, not the witness, would decide the relevance.
As a lawyer performing jury service, one thing I learned is that advocates need to appreciate the emotional state of those charged with assessing evidence. It really is like being a tourist, asking for directions for the plane that you are just about to miss, and getting replies in Norwegian. The feelings and desires it creates are quite violent. Being drip-fed information, particularly when there is no obvious context or direction, creates more sensation in the pit of one’s stomach than in the receptive organs.
I noticed also that my mental state was quite reversed within the daily cycle. As a ‘persuader’, the day starts early with a kind of nervous tension; short-tempered if things get in the way of priorities, easing off as the day goes on. But as the decision-maker, the reverse was true. Mornings were light, pleasant and a time for reflection but, as the day ended, I felt weighed down by bad news, lies, filibustering, and a general sense of sadness at having absorbed so much information, much of it reflecting on the squalid side of human nature.
We were repeatedly reminded of the very onerous duty of being a juror. Each one of us took this greatly to heart. The jury panel was truly impressive, the ‘wisdom of crowds’ in action can be quite breathtakingly powerful and even humbling. Sometimes, a key point was made by the most unlikely contributor. The judge also reminded us that the burden of proof was monumentally high. The defence, in fact, did not need to prove anything. We had to be no less than ‘sure’ of guilt. It’s a salutary thought that your one vote can be the difference between freedom and incarceration and perhaps ruination of a human being. When the defendant was given the ‘not guilty’ verdict, collapsing to his seat and clasping his head in turmoil rather than joy, he needed to be reminded by the judge that he was ‘free to go’.
Serving on a jury was a genuine privilege, and a hugely enlightening experience. But I have learned that we lawyers, in seeking to persuade others, should try to be a little less like lawyers.
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