It’s not a topic you hear every day, and it has nothing to do with personal injury law, but I want to give you some basics so you’ll know what’s going on.

Jury nullification is when a jury is instructed by the judge it can disregard the law, and acquit a defendant charged with a crime, even if the defendant violated the law.

Here’s the problem:

In normal circumstances, a jury hears a case, determines the facts, and is instructed by the trial judge to follow the law as s/he gives it to them before rendering a verdict.

The jury is the sole trier of the facts of a case; it finds out what happened.

The judge then tells them the law; s/he’s the expert there.

The jury then makes a decision based on the facts and the law.

That’s how it goes most of the time. It’s text-book legal procedure.

How does jury nullification change things?

Jury nullification is different; the jury becomes the finder of fact and the law– judge & jury, really.

Interestingly, many people believe it has always been (as a practical matter) within the power of the jury to decide whatever it pleases. For them, jury nullification is no big deal.

These folks point to early colonial history where it is part of our jurisprudence, and nothing radical at all.

Obviously the jury nullification instruction is something only defense lawyers want because it is potentially a big advantage to criminal defendants.

It does not, in any way, benefit prosecutors.

It allows the jury to let a guilty person go free if it decides that is the best thing/ right thing to do.

It is never Constitutional to let the jury disregard the law to find a defendant guilty.

The push these days seems to be spear-headed by folks who are against the drug laws, particularly marijuana. They are convinced that like-minded jurors will refuse to convict people charged with drug-related crimes, if they are given the chance.

They might be right, especially since a prosecutor needs unanimity among the jurors to obtain a conviction. If one juror holds out, then there is no conviction.

Opponents of jury nullification, on the other hand, argue that everybody is required to follow the law, including jurors, and nobody has the power to re-write the law. It is the job of elected representatives to make the laws, which all are bound to follow.

There is an old story of a young man charged with a crime. After a trial in which the prosecution proved his guilt beyond any reasonable doubt, the jury found him not guilty. When the foreperson of the jury read the verdict, she pointed her finger at the defendant and said: “Not guilty & don’t you ever do it again!”

That’s jury nullification.

Maybe the jurors felt the guy deserved another bite at the apple, liked the fellow, didn’t like the charge the prosecution or whatever.

Jury nullification really has no role in civil cases. It’s been used in criminal cases where it is the state, the prosecution, the government versus the individual defendant.

I don’t know what will happen with the efforts to make jury nullification part of every criminal trial, but folks will be thinking and talking about Constitutional rights– and that is a good thing.

How do I feel about jury nullification?

For those of you who know me and/or read my blogs, you know that I do not shy away from expressing my opinions. I’ve never been a shrinking-violet, as they used to say.

But, I’m a bit undecided on this one right now, although I generally favor anything that gives the jury more power.

Then again, it is not important to have an opinion on everything, is it?

Keep your strength.

Charlie Donahue
Injury Lawyer
Keene, New Hampshire

One insurance adjuster ranked some personal injury lawyers in these parts, and put me on top, in terms of being a dangerous adversary.

Quite a compliment because there are a lot of good, competent injury lawyers. There really are some very good ones. Of course there are a lot of hacks too, so an injury victim needs to be extremely careful.

In his view, I am jury-friendly, and that makes for a dangerous adversary.

He knows, through experience, some lawyers are good in front of juries, and some are not. It’s tough to win an injury case if the jury does not like or trust the lawyer– let alone if the jury actually ends up infuriated with the lawyer to the point of hatred.

Yet it happens all the time.

You see real smart ( or so they think) trial lawyers looking down their noses at the jury only to leave the courtroom with their tails between their legs.

The courtrooms in New Hampshire have the skeletal remains of many arrogant trial lawyers.

No doubt about it, being able to talk to jurors with commitment, clarity, and honesty is key.

Too many personal injury lawyers can’t make that connection ( due to arrogance or insecurity or whatever), which is harmful, if not fatal, to a case.

I’ll never forget the words of an injury lawyer with a big advertising budget after he lost yet another jury trial. It was something to the effect he should have been a probate lawyer.

Truer words have never been spoken. But the point is that probate law, for the most part, is not street-law, and dealing with juries.

Those words should have burned in his mouth.

Like a lot of injury lawyers he should have years of psychological counseling and serious spiritual work before he ever tries to present a case to a jury. What a mess, and what a pity.

So, the compliment was nice to hear, especially from a professional in the injury law business.

The jurors as a group, with all their years of experience, are smarter and wiser than any 1 injury lawyer. They’ll spot a phony in a New York minute.

The fact is I really like people. The folks sitting on the jury are the same people you’d see at the ballpark, in church, at the store, at school or downtown. For the most part, I just get along with them.

It is important, however, not to lose sight of the goal—settling the injury claim for top-dollar without going to court.

But if the going gets tough, injury victims need a lawyer who connects with people. After all, they are powerful.

How powerful?

At the end of the day you’re either a winner or a loser… and they make the call.

Keep your strength.

Charlie Donahue
personal injury/ car accident attorney
Keene, N.H.

Of course, the real winner was my client, but the truth of the matter is that a lawyer and his credibility are inextricably inter-twined with his client’s case.

I’ll also never forget trying a case with another lawyer (who will remain nameless as a courtesy) who was so arrogant, nasty and condescending that during a break in the action the bailiff took me aside to ask where “that bastard” came from. As it turned out, the jury was so turned off by “that bastard” it punished his poor client.

The lesson of the story: If you have a lawyer who is no good with people, be very careful and get rid of him before it’s too late.

On the brighter side of things, I’m from the school that thinks a bird in the hand is worth two in the bush, and that it is always best to settle an injury case if it can be done reasonably and fairly.

However, these days more than ever, a personal injury lawyer better be willing to bring suit and go the distance if necessary.Otherwise the insurance company will take advantage. If a case is prepared for trial, it will probably settle. Some cases just need to be tried, while the overwhelming majority can be settled.

It costs nothing to talk with me and I don’t get paid until you win.

Keep your strength.
Charlie Donahue, injury lawer

Anyway, a deposition is a statement under oath. A lawyer asks the witness questions. The stenographer records the questions and answers. It is a very important part of a law suit. It is part of what is called ‘discovery” where a party is able to find out something more about a claim or defense.

As an injury lawyer, I tell my clients that something more happens at a deposition, something far more important than mere discovery of facts. This is probably the other lawyer’s first real life look at you, and the first communication with you. It is an incredibly important event. There is a good chance the person paying the bill, the insurance adjuster, will be there too.

But, there is no need to fear. If a client can just be his or herself, and not try to impress or put-on, a resounding message will be sent to the opposition. It will be a message that this injury victim is powerful because he or she will be liked by the jury. Nothing more important can be accomplished at a deposition. Mastery of the facts and having a super-human memory will mean little if it is done with arrogance.

It is far better to screw up a deposition in all technical aspects, and be likable, than vice-versa.

Being REAL is the key. Insurance companies can’t handle real. It frightens them. It knows all too well that an injury victim who is “real”, coupled with an injury lawyer who is “real” is the most formidable of adversaries. Juries like and can relate to “real” people. This always makes the potential for a good jury verdict.

I tell my clients to be themselves— and this is always good advice.

We at Donahue Law are based in Keene,N.H., but handle in jury cases all over New Hampshire, and across the country.

It costs nothing to talk with me and I don’t get paid until you win.

Keep your strength.

Charlie Donahue, personal injury attorney