Nicole Hong penned this entertaining Wall Street Journal [paywall] article about sleeping jurors in Saturday’s print edition. The opening:

The right to a jury trial is a pillar of America’s justice system, enshrined in the Constitution from a tradition dating back more than 1,000 years.

The problem these days is making sure jurors stay awake…..

From time immemorial, jurors have been falling asleep because from time immemorial, lawyers have been boring,” says John Gleeson, who was a federal judge in Brooklyn for 22 years. “We’re the dullest people in the world, for Christ’s sake.”

Sidebar: Come on judge. Us lawyers are just playing by you judges’ rules. Us lawyers would love to insert some interesting commentary on the testimony. You won’t let us.

My favorite line in the story:

When lawyers see a slumbering juror, “it is a total blow to the ego,” says Sarah Coyne, a former federal prosecutor and now a partner at Weil Gotshal & Manges LLP.

The article also talks about sleeping judges.

The only solution the article suggests to the issue is letting jurors take notes.

My Take:

I have a different take on lawyers’ reactions to a sleeping juror. A lawyer does not need to do trial work if their ego is fragile enough to take a hit when a juror sleeps.

Trial lawyers need thick skins and a lot of confidence in their abilities. Confident trial lawyers think a sleeping juror (or judge) has the problem–not the lawyer. That’s just how trial lawyers have to be wired.

Plus, potential jurors who seem engaged in voir dire usually get struck by one side or the other. People who look docile tend to not get struck as readily. The attorneys are trying to spot the leaders, get their leaders on the jury and strike the other side’s leaders. They aren’t worried if the non-leaders sleep because they are banking on them going with the vocal leaders.

Many cases are deathly exciting for the lawyers involved and deathly boring for everyone else. And there’s only so much the lawyers can do to make it more interesting.

After opening statements, lawyers just get to ask questions until closing. Exactly how interesting can the lawyer make it when their decision is: what do I ask next? Somewhat more interesting, at best.

I worry about how jurors process information and decide cases. I’ve written a lot about the topic under the Improving the Jury System Topic. I’m more worried about jurors not deciding cases based on the evidence and law that sleeping through some of the testimony.

The whole system for trying cases needs a fresh look at whether it can be improved based on modern technology and decision makers. But I don’t see it happening in my career.