The Sudoku Mistrial Lesson: Trial Attorneys Should Be Alert to Possible Distractions
The recent Sudoku mistrial post in the Wall Street Journal Law Blog caught my attention (“The Sudoku Jury, Redux: Are the Lawyers to Blame?”). It was about a mistrial declared after a 105-day drug trial in Australia because some of the jurors were playing Sudoku. LB was following-up on an earlier post (“Can You Blame Them? Lengthy Trial Aborted After Jurors Played Sudoku”).
While every trial has its moments when the testimony is not titillating, it's the job of the attorneys to keep an eye on the jurors to make sure they are not otherwise distracted from listening to the witnesses' testimony. The distraction need not be Sudoku or any game. More often it is simple fatigue. Not every juror gets a good night's sleep so they are sleepy during the day (especially in the afternoon if they had a big lunch). And, no juror is focusing on the witnesses' testimony one hundred percent of the time.
Successful trial attorneys are entertaining because they love being on trial. Trials are the original improv and successful trial attorneys are great actors who enjoy performing. Successful trial attorneys sense the mood of the jurors and tailor their trial tactics accordingly. Sleepy jurors may need to take a break to grab a cup of coffee. Or, they may need to take a break to stretch their legs. Regardless, the successful trial attorney needs to make sure he or she has the jurors' attention and can hold it in the palm of their hand.
The parties in any litigation rarely benefit when a mistrial is declared.
