Virginia Lawyers Weekly

The nation’s economic downturn has a new set of victims: members of juries.

Jurors increasingly are requesting recusal from service based on financial hardship due to the current economy.

Anne W. Reed, a trial lawyer and jury consultant in Milwaukee, Wis., recently saw the impact of this trend first-hand.

On the first day of jury selection for a trial, Reed said that few prospective jurors asked to be excused for financial hardship, probably because the jury pool was large and they assumed they wouldn’t be called.

But on the second day, when the judge announced the final jury, “hands went up all over the box,” Reed recalled. “Jurors were saying, ‘I can’t do this.’”

Reed, the author of “Deliberations,” a blog on juries and jury trials, said she encountered a spectrum of concerns from jurors – ranging from self-employed individuals worried about missing work to others who planned to perform their jury service by day and then work at night.

Reed’s experience is becoming increasingly common.

While no statistics are available, there is anecdotal evidence that some court systems are being forced to increase the number of individuals called for duty in order to have enough people to actually seat a jury, said Gregory Hurley, an analyst at the Center for Jury Studies at the National Center for State Courts in Williamsburg.

Hurley recently took an informal poll of jury managers across the country and received a “mixed bag” of results.

The responses varied from managers experiencing no change in the number of financial hardship requests to “others claiming to have experienced a pretty significant impact, having to call many more potential jurors in,” he said.

Some jurors are on unemployment and are required to be out looking for work; others are employed but concerned that missing any time from work could get them fired or work on an hourly basis and can’t afford to miss work time while serving on a jury.

“This is a very real problem and the excuses are much more severe than they have been in the past,” said Richard Gabriel, president of Decision Analysis, a national trial consulting firm in Los Angeles. “Judges are very sympathetic to these issues, especially when a juror stands up and says, ‘I lost my job and my house has been foreclosed on.’”

Planning ahead

Whether a juror is excused due to financial hardship is at the discretion of the presiding trial judge.

But lawyers can plan ahead for the possibility that they may not have enough jurors for trial, Gabriel said.

“One of the remedies is for all the parties and the judge to have a conference before trial is scheduled to start and determine if it is absolutely necessary to have the trial as scheduled,” or if it’s possible to reschedule it for a later date, he said.

Lawyers should be aware that the length of a trial may be relevant to some hardship requests.

“For a trial that is scheduled to last one, two or even three days, it’s going to be a lot harder for a juror to claim a hardship excuse,” Hurley noted. “But as you get into the more lengthy trials, the hardship becomes a more viable excuse.”

As a result, Gabriel suggested that parties also should be willing and prepared to limit their case presentation to shorten a trial if necessary.

Another option would be for judges to seat more alternate jurors in case the trial goes longer than anticipated.

“If a juror says he could handle a two-week trial but can’t miss more work than that, the judge could seat more alternates in case the trial goes longer because of unanticipated events,” Gabriel explained. That way, losing a juror or two won’t result in a mistrial.

In jurisdictions where financial hardship has made it nearly impossible to seat a jury, lawyers should be prepared for judges to push harder for settlements in order to avoid trial.

Reed suggested that lawyers and judges engage in more individual questioning to fully explore jurors’ financial concerns.

But it’s important to ask questions “without giving cues as to what responses might constitute a hardship, so that you don’t send a message to the entire group about how to get a ticket out of service,” she cautioned.

Reed advised asking the judge to work through the entire panel and then make his or her decisions at the end, rather than responding to jurors’ requests one by one.

More requests to come?

If the economy remains stagnant or gets worse, lawyers should expect to see even more requests for financial hardship recusals.

When Hurley polled jury managers, “I anticipated that there would be more of a problem,” he said. “Common sense suggests that the number of requests might get worse if the economy doesn’t improve.”

If the problem worsens, Gabriel said that the right planning is essential.

“You certainly don’t want a judge forcing panelists to sit on your case when it presents a financial burden for them,” he said. “So plan for this possibility and try to be flexible about your trial plans if you can.”

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