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A View From the Bench: Interview with the Honorable R.E. Jones, Senior Judge of the US District Court of Oregon
The Advantage: 3.05: V.2, 1st edition
Rulings on motions and objections provide an immediate reading of the judge’s view of very specific issues. Occasionally, a judge will reveal observations about the nature of trial or the conduct of counsel – some of those may not be what you wanted to hear. Seldom, however, do lawyers have the opportunity to listen to judges talk freely about the courtrooms they run and the trials they witness from the most unique perspective of all involved. This series is offered in the spirit of a conversation we believe all our readers would like to have.
We found it both fortunate and fitting that The Honorable R.E. Jones, Senior Judge of the United State District Court of Oregon, agreed to provide our first interview in this series. Judge Jones’ 42 years on the bench, starting in Multnomah County Circuit Court, moving to the Oregon Supreme Court in 1983, and culminating in his appointment to U.S. District Court in 1990, provides a remarkable basis for his firm understandings and keen insights.
An edited transcript of our interview follows:
Tsongas: What’s the most common mistake you see in attorneys’ approach to jury selection?
Hon. Jones: “There is so much opportunity lost with closed-ended questions. This is a time for the jurors to do most of the talking and lawyers listening. Instead, it often is just the opposite. Junk the old clichés: “Will you be fair?’ ‘Will you keep an open mind?’ ‘Will you follow the court’s instructions?’ What do they expect the answer to be--‘No, I’ll be unfair, jump to conclusions and ignore the judge on the law.’”
Tsongas: How do you think attorneys should make the most effective use of voir dire?
Hon. Jones: “The most important question is, ‘How do you feel about this issue?’ Use it as a time to confess some of the bad stuff that is going to come out. Then be quiet and listen to the answers.”
Tsongas: Do you think that attorneys should worry that “confessing some of the bad stuff” is going to contaminate the pool?
Hon. Jones: “They should not be afraid of contaminating the jury. They should welcome the revelation. If someone says something awful about your client, follow-up with the question, ‘Who else feels that way?’ Then ask, ‘Does anyone have a different thought?’ This is the time to ‘unselect’ a juror.”
Tsongas: What recommendations would you make to attorneys trying to improve their voir dire?
Hon. Jones: “I think in respect to jury selection, if you have an important case, you should not ignore questionnaires. You can learn more from questionnaires than you can learn from hours of questioning. You can ask very piercing questions, and jurors will tell you things they won’t tell you in open court. You can almost pick a jury on paper when a questionnaire is used.”
Tsongas: If lawyers could talk to jurors, what do you think they would learn?
Hon. Jones: “Jurors love to see organized people. They don’t like abrasive lawyers. They love to see a witness impeached with prior inconsistent statements. They are disappointed with those they thought would be the best witnesses, like the police officers who don’t remember their own report, or the experts who can’t find their stuff in their own files. Too often, the ones they expect the most of, they find the least convincing.”
Tsongas: What do you think jurors expect from a trial?
Hon. Jones: “They want a straight-forward, ‘don’t try to kid us,’ ‘don’t talk down to us,’ ‘just lay it out,’ presentation of the facts. Don’t be demeaning; don’t get into a fight with the other side. They like to have things laid out so they can do a business-like job. They really take their role seriously. To emphasize that, I tell them, ‘You ought to be the ones wearing the black robes because your job is more important than the judge’s.’ That’s why we all stand for the jury. The jury really likes that. So for sure, courtesy to the jury is very important.”
Tsongas: What do you think jurors really dislike about lawyers?
Hon. Jones: “Unprofessional fighting between the lawyers. Everyone is always uncomfortable if a couple gets into an intramural battle over dinner. Jurors hate to see the same kind of battle with the lawyers. They also hate sidebar conferences. They just hate the whispering. It gives an illusion of collusion. A lot of time it’s stage whispering.”
Tsongas: What advice would you give lawyers about examining witness?
Hon. Jones: “Don’t over do it on cross-examination. Often I find myself thinking, ‘Look, you made your point, you impeached the witness, you don’t have to shoot the rabbit, bury it, dig it up, and shoot it again. Make your point and move on.’ Also, on cross-examination, lawyers think you have to start every question with, ‘Isn’t it true,’ or, ‘Isn’t it a fact.’ You don’t have to do that. Just make a declaration, “And then you did this, right?”
Tsongas: What do you think about jury consultants in the courtroom?
Hon. Jones. “You should be CIA spies, because I don’t know what you have done. I have no idea of the level of participation, but clearly you’ve made a difference. Our cases are so much better. When cases do go to trial, it’s at a much higher level. The lawyers are so much more prepared. We try less than five percent of our cases, but the cases that are tried are much better prepared. The court system has become so streamlined, that when we actually get to trial, it is very smooth.”
Tsongas: What other changes have you’ve seen since you’ve been on the bench?
Hon. Jones: “It’s a whole new world. With what the lawyers did 42 years ago, they couldn’t exist today. The capacity for reproduction, the capacity for display is totally different. [In a recent case], the plaintiffs’ lawyer used five different mediums of presentation in her opening statement. It was spell-binding. We now pre-receive exhibits so they may be used in opening statement and in trial. Those used are projected to monitors in the jury box. No more of the old routine of asking a witness what an exhibit ‘depicts’ and then laboriously handing the exhibit to be passed among the jurors.”
Tsongas: Have you personally made any changes?
Hon. Jones: “I always pre-instruct. It gives the lawyers so much more freedom to talk about the law in their case. So, a smart lawyer will ask for pre-argument instruction and the jurors will have a nicely indexed group of written instructions, which the lawyers can refer to in arguing the facts relevant to the issue of law. And that helps an awful lot.”
Look for the next interview in this series for another up-close and personal view from the bench.
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