“The waiting is the hardest part/Every day you see one more card/You take it on faith, you take it to the heart/The waiting is the hardest part.”
Though not known for his keen legal mind, songwriter Tom Petty’s lyrics from “The Waiting” seem to indicate that, at some point in his life, he waited on a jury to return its verdict. If there was a nationwide vote to determine what constitutes the slowest passage of time, waiting on a jury is up there with waiting for water to boil or watching paint dry. There is nowhere you can go and nothing else to do. Your mind cannot focus on anything else, and all the conversations in the courtroom are filled with awkward platitudes that fail to recognize the elephant in the room.
Then it comes—the ominous knock from the jury room door. Regardless of how long it takes, it always seems like hours. Immediately, you begin analyzing what the amount of time means for the potential verdict. Even though you know the result will be announced in a matter of minutes, your mind kicks into overdrive. It doesn’t matter if you are the lawyer, insured, or claims professional. It also doesn’t matter if this is your first or 100th jury trial. The adrenaline is always there.
As I write this column, I’m sitting in a courtroom in Alabama waiting on a jury to return a verdict in a significant premises liability case. In an attempt to educate those who have experienced the excitement of waiting for a verdict (and perhaps to humor myself as I do the same), this month’s column comprises the top 10 things you’ll find yourself doing while waiting for “the knock” and why few of them are of use in calming your nerves.
1. Think of all the questions you wish you would’ve asked. Jury deliberation is the worst time to analyze your case and trial performance. It is an exercise that leads only to increased stress and anxiety while you wait. You cannot go back and retry the case. While there certainly is a time and place for reflective analysis, it is not while waiting for the jury to return.
2. Think of all the questions you should not have asked. Every experienced trial lawyer knows that you should never ask a question to which you don’t know the answer. However, I’ve never been in a trial where this “rule” hasn’t been transgressed. Perhaps there are reasons to do it (e.g., if you really don’t care what the answer is and are doing it to make a point). Sometimes a question gets asked and the answer is different than you expected. It even happens with friendly witnesses. During deliberation, those moments always come back to mind. Should you not have asked that question? Should you have asked it in a different way? At this point, it doesn’t matter, but most good lawyers cannot keep from doing this anyway.
3. Make a list of all the things you did not get done while in trial. One of the hardest parts about trying a steady stream of cases is staying up to date with what goes on back at your desk. You know there is a stack of paper waiting for you when you return, but it is completely useless to think about it until your mind is disentangled from the case being tried.
4. Catch up on email. With smartphones, this actually has some value. I usually address only the emails that can be deleted without reply. I’ve learned not to make any decisions about my calendar, commitments, or strategy on other matters while waiting on a jury.
5. Read the paper. The best you can hope for is to glance across a few articles. Nothing you read likely will be remembered once the verdict is presented, but it may help pass a few minutes. However, never let the jury see you do anything that would make them think you aren’t focused on the case. If they see you reading the comics during a break, that can send the wrong message.
6. Go for a walk around the courthouse. This, of course, is a terrible idea because you will wonder the entire time how far you can walk from the courtroom before you are needed for the verdict. You don’t want to miss the knock and have the jury waiting on someone to go and find you. This means you are effectively chained to the courtroom until a verdict is entered. If the jury takes a break for lunch or anything else, you need to be there after they leave and before they come back.
7. Go to the bathroom. This is marginally acceptable only under extreme circumstances. Dehydration is the better option. Don’t miss the knock.
8. Clean up your trial materials. This sounds like an efficient use of time at first. However, you will probably recognize that opposing counsel is not doing the same thing. If you tidy up too much, the plaintiff’s counsel table will look like they are still in trial and yours will not. Could the jury take this as a sign that you have given up? Leave your papers on the table (and perhaps make it a little messier for effect).
9. Review settlement negotiations. This is probably as maddening as anything you could do. The only reason to do this is if you and your client have some interest in negotiating during the deliberation. I tried one case that settled during deliberation, and it was only after the jury was out for over a day. The judge instructed the jurors several times to “keep trying.” If you have made the decision to try the case and you were prepared, it rarely is fruitful to play the “what if?” game while waiting on a jury.
10. Reach for the latest issue of Claims Management magazine. This, of course, is the only productive option! Impress your clients and colleagues with your insights into the claims profession by using this excellent publication as a resource. If you are reading this article, you already know what I mean.