"Was the teacher in the second row taking notes when I was talking?"
"I'm pretty sure the retired guy in the front was nodding for that part."
"Is she just closing her eyes or is she actually sleeping?"
These, ladies and gentlemen, are the actual thoughts running through a lawyer's brain when he or she is standing in front of a jury. Trust me, we're not thinking great legal thoughts, ruminating over case law or setting up the decisive Perry Mason moment where "the truth is finally revealed!" We're desperately trying to keep our captive but non-communicative audience engaged so that they will hear what we're trying to say, while at the same time gauging their reaction to what we are saying to see if we should be saying something different. Most of us would juggle if we thought it would keep the jury's attention. I know I'd pay a lot of money to be able to ask a jury mid-trial whether they believed the witness the other side just put on the stand.
It's a funny little dance, really; we're looking deep into their eyes, analyzing every expression, every sneeze, twitch, yawn, blink and stretch for some sign, the tiniest bit of feedback, while at the exact same time they are doing their best to be completely inscrutable. I'm not sure I believe it's even possible to "read" a jury; of course, that doesn't keep me from offering my opinion as to what it means that the computer programmer in the first row wore a sweater instead of the light jacket she had on the day before.
Which is why I am very excited to be having dinner with the foreman of a jury in a murder trial I did some time ago. For whatever reason, he called my co-counsel and me and offered to meet with us. I can't wait to ask him if the really cool exhibit we made of the knife wounds on the victim made an impact or whether the jury thought it was just a sleazy defense trick. Were they bothered that the police didn't record their witness interviews? Did they discount the testimony of our convict witness a little, a lot or not at all? And then there's the whole issue of the actual dynamics of the deliberations; was it a debate or a brawl? Did they agree or disagree based on the evidence or on how much they liked or disliked each other? I spent three weeks in front of this man, doing my best to read his mind, or more precisely, his face. Finally, he gets to speak his mind to me.
But, just to be fair, I should give him a blank stare the whole night . . .
