Denver Bar Association
October 2005
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Savage Law

by Mel Practice

Million Dollar Wink

or

Ethical Dilemma?

Dear Mel:

I am but a lowly associate in a mega law firm. A partner was in the middle of a three-week jury trial, and I was assigned to help her. Halfway through the trial I started sitting at the counsel table. After two days, one of the jurors — a female — winked at me as the jury was excused for the day. At least I think she winked at me. She could have been winking at the partner, but I doubted it. I looked at the juror’s name on the sheet, and it didn’t ring a bell, although she did look kind of familiar.

That night, I went home and mentioned the incident to my wife. She recalled that at my 10-year college reunion a few years ago, a woman by the juror’s name was talking to us. Then it hit me — she is my ex-girlfriend from college! Her married name is different and her hair color had changed, but I grabbed my yearbook and there she was.

This could be a good thing or a bad thing for our firm’s client. Unfortunately, the alternate jurors in this case have already been used, due to the "sickness" of a few jurors who apparently didn’t want to endure a three-week trial. After 10 days of trial, our client cannot afford to pay the attorney fees that a mistrial would impose. Millions of dollars are at stake, however, and if I misinterpret the meaning of the wink, it could be really bad for us.

My question is: How should I interpret the wink? Do I have a friend in the jury business? Or does she still hate my guts just because I got drunk once and totaled her car? Please answer quickly, because time is of the essence.

  ~Second Chair

Dear Second Chair:

As Monty Python once said: "A nod’s as good as a wink to a blind bat!" You can’t act upon what you didn’t see. And do you know what you saw? Do you think you understand women well enough to interpret this juror’s gesture? Assuming this was something more than a speck of dust in her eye, did she relish your old college days and have fond memories of your times together? Or, is she simply trying to entice you into rekindling your flame so she can crush your heart for totaling her car? As a man, there is no way you can know.

Put another way, is there a man alive willing to risk millions of dollars on whether he properly interpreted a woman’s gesture? The question answers itself.

Interestingly, you are worried only whether you are reading the juror correctly for a winning result for your client. Are you at all interested in knowing if ethically you are required to disclose your prior intimate relationship with a juror? I didn’t think so.


Let Mel Practice answer your questions related to life, law and anything you’d like to know. E-mail your burning question to savagelaw@cobar.org. Nothing is too scandalous!


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