This story is part of our Lawyer Stories series which shares vignettes of one’s high and low (and sometimes even funny) moments in the legal profession. Read on.
Although it’s legally allowed, Judges hate when an attorney back-strikes a juror. Back-striking is when, after jurors have been selected and both parties have agreed to have them serve, but before the jurors have been sworn in, either side that still has unused challenges changes their mind and rejects a juror.
Doing this causes several delays as more jurors have to be brought in and the process of selection has to start again, so it can be an inconvenience when an attorney does it.
Often, to discourage the practice, judges will call the jurors into the courtroom so that if an attorney wanted to back-strike, they’d have to do it in front of the jury. Many attorneys feel that rejecting an already selected juror in front of the entire courtroom is too awkward and would upset everyone, especially the judge, so they don’t do it.
I was trying a case with an attorney once, and I convinced him to keep a certain juror. Although he had a lot more experience than me and was nervous about keeping the juror, the attorney decided to listen to me and let him stay. But as the selection process went on, he couldn’t shake the feeling that the juror was misrepresenting who he was and had a hidden agenda that would come out during deliberation and could ruin the case for us.
As the judge was swearing in the jury, in the middle of the oath, the attorney jumped up from his seat and loudly exclaimed: “The plaintiff strikes juror number six!”
The courtroom was completely silent, and everyone: the judge, the bailiffs, the jury, all the lawyers, the court reporters, and the people in the stands, all turned to look at my partner. The next few minutes were uncomfortable for everyone involved. The bailiff had to escort juror number six out of the courtroom as we all sat frozen with mortification. The rest of the jury had no idea what had happened, but they knew it wasn’t good.
Ever since that day, I haven’t shied away from back striking when it’s necessary.