Another reason why collaborative divorce is a great idea.
When a jury or judge hears a case and will make a decision that might impact you for the rest of your life, the outcome is never predictable. You’ve all heard the old saw “It all depends on what the judge had for breakfast,” or “It all depends on which side of the bed the judge woke up on.” Here is a story about the jury rendering a guilty verdict in a case which the defendant and his attorney were certain that they would win.
I was what we call “a baby lawyer” when I tried my first case in front of a jury. At twenty-six, I worked as an assistant state attorney. I had moved up through the Intake Division into Traffic. The judge was a stern-looking middle-aged white man who rarely smiled. His judicial assistant looked like she snacked on lemons. In contrast, the bailiff, perpetually clad in forest green, was a tall, black, former sheriff who welcomed me into his courtroom. He was quick to explain the rules, so that I didn’t embarrass myself. I was grateful.
The defendant was accused of driving under the influence, and my opposing counsel was the number one DUI attorney in Tampa Bay, Victor Pellegrino.
This took place in 1983, and the years have erased my memory of the underlying facts. I vividly recall interviewing potential jurors. I inquired about their backgrounds and possible prejudices. I asked if they would be able to apply the law to the facts of the case impartially. I crafted questions to assist my choices from the jury venire, the jury pool. At the end, the judge gestured for Victor and me to approach the bench. There, away from their earshot, we could exercise our strikes, to remove potential jurors we didn’t want.
I could tell that both the judge and Victor were waiting for me to seize the opportunity to get rid of three prospects, two men and a woman. The decision rested on me; I had no one second chairing the case. It was obvious why. The first man had been convicted of DUI ten years
before. The second man had been convicted of DUI five years before. And the woman’s husband had been arrested for DUI six months before. Logic said to strike them all.
But my gut told me to leave them, so I did.
I don’t recall actually trying the case; I do remember being very nervous. I do recollect it took less than two hours. And I do recall our closing arguments. Mine seemed so brief. Victor, on the other hand, went on at great length about all the gaps in my evidence.
Those jurors filed out of the courtroom like little ducklings behind their green-suited mother duck to the privacy of the jury room. And I remember the shock on the bailiff’s face when they all filed back into the courtroom less than seven minutes later.
I had never before experienced the formalized protocol of obtaining the verdict from the foreman of the jury and publishing it. It seemed to take forever. Finally, the judicial assistant read from the sheet of paper that had been handed up to her. “Guilty!”
The bailiff grinned broadly at me.
I didn’t look at the defendant’s expression, but the shock on Victor’s face was palpable. The bailiff ushered the jury out to wherever juries go, and the judge swept out his own door with his minions. It took several minutes for Victor and me to pack up our briefcases. I was hurt when he ignored the hand I held out prior to exiting the courtroom.
I shouldn’t have been. My new friend, the bailiff, had returned just to inform me that mine was the fastest guilty verdict in the history of Hillsborough County.
Years later, I mused out the reason for the swift guilty verdict. It was crystal clear: the two guys convicted of DUI? They knew in their hearts that they were guilty, and, if they had to pay the piper, then so did my defendant. The gal whose husband had been arrested? She knew that her husband was guilty. In fact, she was probably in the car with him when he was arrested. I’d bet dollars to donuts that she had offered to drive instead of him, but he had turned her down. And if he had to pay the piper, then so did my guy!
We can ponder how the judge or jury makes decisions all day long. We can hire jury consultants to help us anticipate how jury members will react to the evidence and to the
way we present it. But, at the end of the day, we can never be certain. I can only confirm that trial work is an art, not a science, that my gut was right when Victor’s head was wrong that day in 1983.
When you’re getting a divorce, do you want to take that chance?
Don’t litigate; Collaborate!
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About this week’s author: Joryn Jenkins.
Joryn, family attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law while also serving as a full-time professor in law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen award, an honor bestowed upon those who have provided exceptional leadership to The American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.