'Ladies and Gentlemen of the Jury, Please Wake Up! It's Happy Hour!' - Articles

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Posted by: William Haltom on Mar 31, 2009

Journal Issue Date: Feb 2008

Journal Name: February 2008 - Vol. 44, No. 2

Throughout my 30 years as a trial lawyer, I have seen a lot of sleeping jurors. Heck, I've seen an entire jury nod off as if they were the cast of Bedtime for Bonzo.

Juror nap time generally happens during the afternoon session of the second day of a trial, as one of the lawyers reads a medical deposition into evidence. You got chronic insomnia? Well, forget about taking Ambien or Tylenol PM or a stiff shot of whiskey. Just sit in a jury box on a warm spring afternoon while a trial lawyer reads you a bedtime story called "Dr. Jones treats the Plaintiff's Carpal Tunnel Syndrome." Before you know it, you will be snoring away like Rip Van Winkle.

As a veteran trial lawyer, I have a general rule about sleeping jurors: Don't wake them. This is a corollary of a rule I learned when I attended the Famous Daddies School 20 years ago before the birth of my first child: Never, never, never wake up a sleeping baby.

Sleeping jurors should also be left alone for two reasons. First, like babies, if you wake them they will just get mad at you, and the last thing any trial lawyer should ever do is make a juror mad. Second, sleeping jurors are absolutely harmless. If they sleep during the trial, they are going to sleep during jury deliberations. They will just go along with the few jurors who managed to stay awake during all the proof, even the medical depositions.

It took me awhile to learn this lesson. When I was a young lawyer trying one of my first jury trials, I noticed a sleeping juror in the box. As an earnest young officer of the court, I thought I should bring this to the judge's attention. But when I turned to the judge and asked for permission to approach the Bench, the old man in black robes did not respond. It turns out he was also asleep.

So now, whenever I see a sleeping juror, I leave them alone and just hope that they won't start snoring so loudly they will wake up the judge and the other jurors.

While I have seen a lot of snoring jurors over the years, I can't ever recall seeing a drunk one. Under Tennessee law, a prospective juror who "is drunk, or has been drunk during the term of the court then sitting, or is a habitual drunkard" is disqualified from jury duty. This raises the obvious question of how we know a prospective juror is drunk or has been drunk during the court term or is a habitual drunkard. Believe me, I have never during voir dire asked a prospective juror, "By the way, Mrs. Jones, are you drunk?" Moreover, I have never seen a judge administer a breathalyzer test during jury selection.

But I may soon encounter not only sleeping jurors, but drunk ones as well.

Believe it or not, during the upcoming session, the Tennessee legislature will consider amending the law exempting drunk people from jury duty. At least that is what I read in a recent article in The Tennessean with the provocative title, "Odor in the Court? Drunk Jurors Recalled."

Allowing drunk people to serve on a jury is certainly a sobering thought. Heck, we allow legislators to serve while drunk, why not jurors? Remember the classic lawyer movie, Twelve Angry Men? There may soon be a sequel, Twelve Drunk Men and Women.

If the legislature changes the law and allows drunk jurors, we may soon hear a judge address the jury as follows: "Ladies and gentlemen of the jury, please wake up! It's happy hour!"

And now, if you will excuse me, I am going to take a nap. Now, where did I put that transcript of that medical deposition?