11 angry men and one retired president? Will this work?
Posted 11/7/2017 in The Chicago Law Bulletin
By Karen Conti and David Zehner
Karen Conti is owner of ContiLaw LLC. She is a regular legal commentator on the local Fox affiliate, CNN and truTV. She appears every Sunday from 8 to 9 p.m. on WGN-AM 720 to discuss current legal events and to answer listeners’ questions. David Zehner is founder of Zehner Trial Consulting LLC. He provides guidance to lawyers in litigation and trial preparation.
The announcement that former President Barack Obama was summoned to jury duty in Cook County Circuit Court creates a fascinating mental image. The idea of Obama, with his Secret Service detail, sitting on the wooden benches in a Daley Center courtroom waiting for his chance to be questioned, raises an important issue. Namely, what should lawyers consider when potentially placing a well-known individual on a jury?
This is not the first time that a former president was called to serve.
In 2013, Bill Clinton was called to jury duty in a criminal case in the Bronx, and in 2015, George W. Bush was called to serve in Dallas. Donald Trump, while a candidate for the presidency, appeared in New York City for jury duty. He had previously failed to respond to at least five jury summonses, going back to 2006.
To be fair, Obama, too, ducked out of jury duty. In 2010, he received a jury summons while serving as president in his first term. At the time, he was preparing for the State of the Union address and was excused.
The main issue with Obama serving as a juror is that it would create a “jury of one.” It is extremely unlikely that a significant number of jurors would disagree with him about his conclusions on the case.
This happened when Oprah Winfrey served as a juror in a murder trial at the Leighton Criminal Court Building at 26th Street and California Avenue. One of Oprah’s fellow jurors described the experience as a “lot of fun, much like being on her show.”
It is very likely that jurors serving with Obama would feel the same way. They would enjoy the opportunity of spending time with someone important and famous — not to mention, probably charming and charismatic.
Internally, the jurors’ desire to enjoy the experience of serving with Obama would override much of their decision-making. Instead, they would be more likely to question him to understand how he came to his conclusions and then they would find ways to reach similar decisions about the case.
In addition to his celebrity status, Obama would be extremely influential because he is an attorney. Through talking to attorneys who have served as jurors and other jurors who have served with attorneys, we have learned that there is a strong tendency to defer to the “professionals.”
This would be the same for a health-care professional on a medical-malpractice case or an engineer in a case involving a building collapse.
People look for “cognitive shortcuts” when faced with new information, and one of the easiest shortcuts is acceptance of authority. This authority bias exists because it is much easier for an individual to accept that the “expert” with specialized knowledge is best equipped to do the right thing instead of having to reason out the situation themselves. This is why individuals with specialized knowledge are usually excluded during jury selection.
The bottom line is that if Obama is selected to serve on a jury, he would likely be influential in the outcome, and the lawyers would be effectively trying their case to persuade him.
And now, the co-authors would like to engage in what we will call, “Fantasy Voir Dire of the Former Leader of the Free World.”
Q: Juror #44: What is your birth date and place?
A: Aug. 4, 1961, Honolulu, Hawaii. Please don’t tell me that you need to see the paperwork.
Q: Have you ever served in the military?
A: Did you say served or commanded?
Q: Do you know anyone in the legal field?
A: Where do I start? We are a two law degree household. I have also worked with many other lawyers in my previous job in Washington, D.C. I appointed two Supreme Court justices although it really should have been three. (Thanks, Mr. McConnell.)
Q: In this trial, you will hear the claim that some of the plaintiff’s injuries are related to him being a smoker. Do you smoke or have you ever smoked?
A: While I used to smoke, I have not smoked a cigarette in more than 10 years. Not one. By the way, are we getting a break where we can go outside soon?
Q: Do you have a problem with awarding millions of dollars in damages if the evidence supports it?
A: While I think it is always important to be fiscally responsible, there are times when a certain spreading of the wealth is a good thing.
Q: Do you understand that you have a civic obligation to serve on a jury?
A: Isn’t eight years enough? Just saying.
Q: Do you understand that you will receive $17.20 per day plus lunch? Will that be a hardship?
A: Even though I am on a fixed income, I think I will be OK. Just need to make sure the lunches are healthy, or when I get home, my wife will give me all kinds of grief.
Q: Do you believe that plaintiffs who are injured should receive funds for their medical treatment?
A: Can you say Obamacare? I think every American should receive the medical care that they need!
Q: Do you think that you will be able to deliberate as a juror given your prior job experience?
A: I think that I am uniquely skilled to bridge all possible partisan divides. Well, maybe not all.…
Q: Do you understand that you will be basing your decision on the law as it is and not how you hope it will change?
A: Not sure I can do that. Those are two things that I really believe in — Hope and Change.
Q: Do you think that we can try this case and expect a fair and impartial verdict from you?
A: YES WE CAN!