Podcast - The View From The Jury Box

In this special guest episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small talks with Miami litigation attorney Jose Casal about his recent experience serving as a juror in the Miami-Dade courthouse. Mr. Casal states he wished he had the opportunity to serve on a jury at the beginning of his career because of the perspectives it gave him on how the jury thinks and operates. Sitting on the other side of the bench made him realize that tactics such as objections and impeachments were often seen by jurors as annoying and ineffective, merely slowing down the trial and distracting from its main points. Similarly, the case featured numerous claims and objections, resulting in a 22-page verdict that Mr. Casal found confusing even as a trained lawyer. Based on this experience, Mr. Small and Mr. Casal agree that presenting your case simply and clearly is far more beneficial and convincing for Juror No. 6 than legal technicalities they do not understand.

Listen to more episodes of The Trial Lawyer's Handbook here.

Mr. Small is also the author of the American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.

Podcast Transcript

Dan Small: Welcome to The Trial Lawyer's Handbook podcast. We are particularly fortunate today to have my Miami partner and friend and great trial lawyer, Jose Casal, with us. Jose, welcome to the podcast.

Jose Casal: Thank you for having me, Dan. It's actually a pleasure to be able to participate in one of your famous podcasts. I feel honored and privileged and let's go.

Dan Small: Jose, you've been a trial lawyer for many years, but recently had an experience that many of us are envious of because you actually were selected on a jury panel. Tell us a little bit — I don't want to go into the details of the case — but just give us a general overview of what happened and what the case was.

Jose Casal: Sure. And again, I think your point is a good one in that we usually as trial lawyers, even though we think we know what a jury does and how a jury conducts itself and how it thinks and behaves and the things it goes through — we don't. We really don't unless you've actually been on the other side of the veil. And here was a situation where, of all things, I was asked to serve on a jury in a case that was before the Complex Business Division in South Florida. And it is a court that I have practiced frequently for many, many years. And to actually have been selected to be a juror in a case in the Complex Business Division, which is the type of work that we do day in and day out as a law firm, was remarkable.

Dan Small: So that leads to the first question, which is, they have this thing called voir dire to pick a jury. I've never survived voir dire, I have to confess. How did you find that, and how did you get through it and get selected?

Jose Casal: So I was juror number 10, and I thought I was in pretty good shape. Either somebody would strike me using a peremptory at least or maybe even for cause. And as the lawyers — who I all knew — were asking me questions, I kept on raising my hand because you know: Have you ever been in a lawsuit before? Have you ever had a business dispute? Do you know the people here? I mean, it was just, I was constantly raising my hand. And then it got to a point where the lawyers just said stop raising your hand, we know. So they knew exactly who they were dealing with, and I figured, you know, this is easy, this is going to be cut and dry. So I wasn't that far deep into the panel that it wasn't a situation where I wasn't going to get reached, but I figured they were going to use a peremptory, and to my complete surprise, I was the first person selected.

Dan Small: So how many folks were on the jury and how long was the trial? Give me an overview.

Jose Casal: So since it was a civil case in Florida, it was six people. There was a six-person jury with one alternate. The one thing I thought was interesting was, at least here in South Florida, the veneer, the panels that come out for the voir dire are usually 32 jurors, but interestingly enough, there were two jurors that didn't appear. And so we only had 30 jurors. And usually, if you're on one of these panels and if you are one of the late numbers, like 28, 29, 30, 31, the chances are that you may not be reached. And in this particular instance, the two last jurors, number 29 and 30, were both selected. One was the alternate, and the other one was the last juror. So it just goes to show you how absolutely random and unique the whole process is.

Dan Small: What was the view from the jury box? Tell us a little bit about how different that was from the view you're used to, which is from counsel tape.

Jose Casal: Well, I can tell you that the view from the jury box was extremely uncomfortable. It was limiting. Our sightlines were terrible. And anybody who has tried a case in the old Miami-Dade courthouse, especially on the higher floors, knows that they weren't built for courtrooms, but they've constructed them so they can have a sufficient number of courtrooms. And sure enough, we had one of those courtrooms with the pole in the middle and the air conditioner was broken. And it was I think set, you know, fixed at 50 degrees. And so everybody was just freezing. And the chairs we were sitting on were probably 40 years old that had no cushions. And it was just one thing after another. And the way that the witness box was set up, the jurors had to lean to their right to view, and I was closest to the witness, so my entire neck and back hurt unbelievably by the fifth day of the trial — I've never experienced such pain in my life. And what was interesting was, it was a full-on business dispute and there were seven trial days for the case, which surprised everyone.

Dan Small: Before we get to the trial dynamics, tell us about the jury dynamics. How did the jury interact and relate?

Jose Casal: So the jury that was selected was remarkable. And again, it goes back to my point that it's just completely random and you never know. We had, and as was later described by plaintiff's counsel, as a "highly sophisticated jury." And I think he's right. So in addition to myself, as one of the lawyers, we had another lawyer that was selected on the panel. Now, she was very bright, she was an in-house lawyer but had done some trial work before she went to go in-house. So she was obviously familiar with the process and was, to a large extent, familiar with the issues in the case because the reason why this case happened was in large part because of things that in-house counsel in one company did or didn't do. We had a Ph.D. candidate in neuroscience. I mean, she was the smartest person in the jury room by far. We have another person who was a software engineer, this case had software engineering issues. We had a former teacher, artist, very intellectual, intelligent, he was retired from the school system, but very intellectual, knew many different languages. And we had, last but not least, we had a very young, intelligent college grad who was involved in one of the private schools here and their fundraising capabilities. So obviously she knew some of the people as well that were participating in the trial. It was a very unique jury.

Dan Small: Wow. So, when we talked before, I was struck that several of the things that trial lawyers so love about trying cases had a very different view from the jury box, including impeachment and objections and several of those things. Tell us about that view.

Jose Casal: Yeah, and let me start my comment on that with, I thought the lawyers were very well prepared. I could tell, as someone who has done this before, that they put a lot of effort into it. The demonstratives actually helped us. And by the way, good old-fashioned, physical demonstratives still work. I thought one of the most effective pieces was that timeline blowup on the cardboard. Just putting it before the jurors, that resonated with the jurors. But despite all of their preparation, we as lawyers, particularly as trial lawyers, get caught up in some of the legality and some of things dealing with the practice of law, particularly the practice of being a trial lawyer. And so that includes objections, that includes impeachment and things like that. And I can say that I thought it was just tremendously ineffective, both the impeachment of witnesses that was presented by the lawyers in this case, as well as some of the objections with regard to some of questions that were being asked. When you strip away being a lawyer and you're just a regular person, there's an annoyance factor that arises amongst the jurors when this is happening. And they're saying: Why is this slowing things down? Why are we not getting to the point? And so I think as trial lawyers, you have to be mindful of that. And I know we think in ways of, I have to make this objection or that witness testified not a hundred percent like the way she testified in the deposition, so I have to impeach her. But no, you don't. You can let it go. It's not going to make a difference in the case. Trust me.

Dan Small: So was the problem with impeachment, one of technique or one of just trying too many or too minor issues?

Jose Casal: No, the lawyers were competent. They knew the technique, they knew how to do it. I obviously knew what they were trying to accomplish. But I think one of the things that you need to realize, or just keep in mind, when you're a lawyer, [is] these jurors, unless they have some kind of legal background, they have no idea what legal procedure is. They have no idea how a case is tried. They don't know why this is being done this way. They truly don't. And it's not that they're not smart or anything. They just have never been trained on this. And so, you know, there's always the why did the judge do this? And why did the lawyer ask this question this way? And why did the other one get up? And so we have this highly staged process, you know, which is a trial, and the jurors are completely at a loss as to what the procedure is in order to stage this process.

Dan Small: What about the underlying claims and defenses? We always talk about things being overloaded or overcomplicated. You found some of that here?

Jose Casal: Yes, this did happen. This is one of those cases where, you know, you had the long complaint with, you know, at the end of the day, this was a breach of contract case. But of course, you had to have the fraudulent misrepresentation, the negligent misrepresentation, the promissory estoppel, the deceptive and unfair trade practices, you had to throw in everything, literally the kitchen sink. And then, you know, the defense side wasn't any better. They had 20 affirmative defenses. And then on top of that, they had their own counterclaims, which mimicked what the plaintiff had filed. So here you had this very complicated pleading structure, which was ultimately reflected by a 22-page jury verdict. Which was very difficult for me to follow, so imagine someone who is not trained. And so one of the things that you have got to keep in mind is obviously as a lawyer, and I understand you don't want to leave anything out, you don't want to be accused later of hey, you didn't bring this claim or that claim. But seriously think about simplifying your case. Because if you're ultimately going to go before a jury, you need to be able to convince the jury to give you either relief in a particular claim, or if you're the defendant, that you need to harp on this particular defense as to why the plaintiff is not entitled to relief.

Dan Small: That's great to hear. We've talked several times in this podcast about less is more and taking a meat ax to your overly complicated case. And it's interesting to hear that from the perspective of the jury box.

Jose Casal: Just a funny story about the verdict form was that every time we got to a question which says if you say no here, you can skip the question, like number seven, we always cheered when we got there, and we said no. So there was a built-in incentive to say no to most of the questions.

Dan Small: That's great. So what about the jury and its deliberations? There's an experience that none of us have, except when we watch the video of a mock trial or something like that.

Jose Casal: So that was the best part of participating in the jury. I had a bad feeling that I was going to be selected foreperson because throughout the process, we didn't talk about the case, but we talked about procedure. Not so much about the specific things that were going on in the case, but just in general, because really the jurors, going back to what I said earlier about procedure, their notions of procedure are limited to literally what they see on TV. Literally. The two points of reference they had were the O.J. Simpson trial and the Johnny Depp-Amber Heard trial. Those were the two points of reference that they had. That was their understanding of procedure.

So you go back to the deliberation room. And one of the things that struck me was that they took our phones. And I didn't know that, but everybody had to surrender their phones, and the bailiff held the phone. So we had no access to the outside world while we were deliberating. Now, it's not like we were sequestered or anything. We would go home and take our phones back. But at the end, we didn't have access to the outside world. The other thing was that the jurors really did take their job seriously. And we had two big stacks of exhibits, one for the plaintiff, one the defendant, and we reviewed pretty much all of the documents. The first thing we did do, however, is we immediately went to the verdict form just to understand it, to understand what the lawyers and the court was asking of us, so then that would frame the way we would then review the evidence and talk about the case.

Dan Small: And so how did it go?

Jose Casal: Well, there was a general consensus in this particular case that the plaintiff was wronged and that there was a breach of the contract. We disregarded all of the other, you know, we considered that noise, all the other claims, you know, we didn't feel that the other side engaged in fraudulent misrepresentation or any form of misrepresentation or deceptive or — this was just a plain old breach of contract. You promised to do something, and you didn't follow up with it, and one thing led to another and it wasn't performed. We also felt that the individual who was involved in the negotiations shouldn't be held personally liable for what he thought. He thought the deal was X, when things made it clear that it was really Y. And I understand there's the thinking: Well, wait a minute, there was no meeting of the minds. There was a meeting of minds because both sides agreed that B was buying A certain assets, they were buying a team of employees and other things for a value of X. The question was, how do we get there?

So what was remarkable about this, so we had that general consensus, but there was kind of a split of opinion on what was the total amount of damages. And so I had an opinion that the damages should be less, but I didn't say it to anybody, and then I kind of surveyed the room and everybody kind of was in agreement with my posture, except our Ph.D. candidate. And our Ph.D. candidate, when asked, she said: "No, I disagree. I believe that the damages should be a higher amount." And I go, "OK. Explain your reasoning." And she explained her reasoning, and her reasoning had nothing to do with law. She wasn't looking at the jury instructions, she was looking at the documents. She just kind of methodically, clinically, almost like if she was doing an experiment — testing and then result, testing, result — and she was looking at it from that perspective, from the perspective of what she did for a living. And she went through it very dispassionately, objectively, and then she looked at me and she said, "What do you think?" And I looked at her and I said, "You know what? You're absolutely right."

She was right. And a non-lawyer convinced a lawyer who has been practicing for 37 years that, not that he was wrong, but this was a better way to look at it. And it was funny that that happened because I remember one takeaway from when I told my wife that I had been selected for a jury — and she had actually served as a juror, but in a criminal case, a long time ago — and she said to me, Jose, whatever you do, don't think like a lawyer. Think like a real person. And that's how it's going to be easy for you. And she was right. You end up thinking like a person. And you end up taking all of your experiences in life and you kind of bring it all together and you reach an answer, you know, that everybody else, you know, generally agrees with. So it worked.

Dan Small: And isn't that an important, maybe the most important lesson for trial lawyers, that at some point, yes, you're a lawyer, yes, you're trying a case, but if you're trying to case, you got to think like a real person.

Jose Casal: That's right. And the other thing I think, and again, a bit of a shoutout to our process. And yes, it's not perfect. That jury summons comes always at the worst time. But you really do have a civic obligation. Like they say, it's the only thing that our government asks of us as citizens that you must do, which is serve on a jury if asked. This system won't work if you don't participate in it. But when you do participate in it, you realize that it's interesting and it's satisfying. As a trial lawyer — and I've told this to a number of people after I served — I wish that I had served on a jury 25 or 30 years ago. Because I think it would have given me that different perspective in my practice and how to really understand how a juror operates. They're all different, but they kind of all operate the same way.

Dan Small: Expand on that just a little bit. What is the perspective that you would gain from that?

Jose Casal: I think the perspective as a lawyer, again, we get caught up in our world. We get caught in our case, the facts, the legal arguments, we're always going to court and back and arguing in our motion practice and everything and we're focusing on so much of the legal aspects of the case that we're not looking at the case from the standpoint of: OK if I'm somebody looking at this — by the way, completely a random person who doesn't know anything about this case or the people involved — put yourself in their shoes, and so what would be their perspective, how would they perceive your case, and how would you present it in a way so that they can understand it and rule in your favor?

And I think we're so caught up with, you know, the little things in a trial about, you know, the objections and the impeachment and the legal arguments and the jury instructions, how they should read in the verdict form, and we know that that language is unacceptable, and that we lose sight of the fact that, you know, I got six people over there that I got to convince and I got to think like a human being, like a person, as my wife says, so that they can understand my case and hopefully rule in my favor. They are, as the judge said, they are the judge of the facts. And when you are in a jury trial, that judge that's sitting up there is really unimportant. It's the six people or the seven people that are sitting in that box who are important.

Dan Small: That's great, that's great. Jose, we're out of time. Jose Casal, my great partner in the Miami office of Holland & Knight and a great trial lawyer and now a veteran jury foreman. Thank you so much for joining us.

Jose Casal: Dan, I'm available for jury consultations for a fee.

Dan Small: There you go. Thanks so much.

Jose Casal: Thank you, Dan.

Dan Small: That'll be it for this episode of The Trial Lawyer's Handbook. Thank you all for joining us.

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