Thus far, Dick has been served with a lawsuit for breach of his employment contract, but has prevailed in avoiding an interlocutory injunction shutting down his new company. We have discussed the discovery process, mediation/arbitration and are now on to a final trial. Recall that employment contracts are unique in that a Judge decides whether or not the contract can be enforced as a matter of law. If the Judge decides that the contract is not clearly in violation of public policy, the matter can proceed to a jury on damages. We have moved through the trial process to the conclusion which consists of closing arguments by the attorneys, jury charges and the jury deliberation and verdict.
Closing arguments are perhaps the one instance where television and movies and reality have some overlap. The trial process is, in reality, fairly mundane and rarely contains the “gotcha” moments depicted in Hollywood. Closing arguments, however, are the one instance where an attorney can perform.
A successful closing argument will do three things:
1) Recap the evidence shown;
2) Inform the jury of the law that they will apply; and
3) Tell the jury what the party wishes for them to do and why.
The first portion of the closing argument should be tied back to the opening statement. Recall that in our opening statement, the task was to provide the jury with a roadmap of what the party anticipated the evidence would be. In closing, it is important for the attorney to show to the jury the ways in which they have kept their promise. Likewise, if the opposing party has failed to deliver a key piece of evidence which was promised in opening statement, it is critical to point it out to the jury.
The second portion of the closing argument is a challenge. After closing arguments, the Judge is going to read a lengthy charge to the jury regarding the applicable law. A good closing argument will pull out key portions of the charge are highlight those to the jury. The challenge for the lawyer is to keep the jury’s attention during this phase. Jurors are not used to hearing statements of law and legal phraseology. Much of what the judge reads will either put them to sleep or go over their heads. Thus, it is critical for the lawyer to inform the jury of the applicable law in ways that they can process, understand and apply.
Lastly, the closing argument must tell the jury what the party wishes to be done and why. It is amazing how often attorneys will leave out this critical step. They will state, “please do what you think is fair” or something similar. It is important that the attorney precisely spell out the verdict sought and tell the jury why this precise verdict is the fair one. This is the portion of the closing argument where Hollywood and reality can actually agree.
The charge of the law by the Judge is the step following closing arguments and is a much debated process. When trials began, a Judge could provide a charge of the law in short order. However, as the law has evolved and become more complicated, the charge has gotten lengthy. Most juries manage to pay attention for about 10 – 15 minutes for the charge, but tune out after that. Unfortunately, due to the way the charge is structured, the first 10 – 15 minutes contain only general statements of law regarding witnesses, evidence and the process. About the time the jury tunes out, the Judge gets to the law which actually applies to this type of case. By way of illustration, in a simple breach of contract case like the one we have outlined involving Dick and his new company, the jury charge to be read could easily reach 50 – 60 pages.
The last phase of the trial is deliberations and verdict. The process is the most varied since each jury is different. The jury is instructed to retire to the jury room and elect a foreperson. The jury is then to review the evidence presented. Most of the exhibits tendered will be taken with them to the jury room. Post-trial polling of juries by lawyers reveals that many juries will first take a vote (blind or not) to determine the overall attitude of the room. Although they have been instructed not to make up their minds prior to the end of the case and not to discuss the trial with their co-jurors during the trial phase, most of the jurors have done both. As they deliberate a civil case like the one we have discussed, the jury will have two questions to resolve: 1) Is the Defendant (Dick in our case) liable to the Plaintiff and 2) If so, for how much.
Many juries have figured out a mechanism to quickly adjourn. Each juror will write a number of a piece of paper and throw it on the middle of the table. In order to account for those jurors who believe the Defendant is not liable, the number can be zero. The numbers are then added and averaged (divided by twelve). The result is the verdict amount. This process is called a “quotient verdict” and is not permissible. Lawyers will often spot a quotient verdict when they receive a number than is not correlated to the evidence in any way. Unfortunately, there is little that can be done. If the lawyer raises the issue, the Judge will ask if it is a quotient verdict. Assuming the jury admits it (some won’t), the Judge will instruct them that they have to reach a unanimous verdict on the merits. Quick-thinking jurors will then retire, agree that the number reached is a unanimous award based on the merits and return. The quotient verdict is a source of great frustration to lawyers and clients who have invested so much in a trial, only to have it decided in such a cavalier fashion.