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Trial by jury in New Hampshire

Top-notch trial lawyers (and even lawyers like me who have tried some cases before juries) recognize the centrality to the trial dynamic of jury empowerment. The typical juror arrives at the courthouse on the first day apprehensive about the process and wondering whether he or she has what it takes to be a good juror. But once jurors are selected and begin to feel at ease, it usually dawns on them that they have the real power, and that it’s the lawyers and the parties who should (and generally do) feel apprehensive. The best way for the lawyer to overcome this dynamic, and to regain a sense of control, is to figure out how to direct the jury’s sense of empowerment.
New Hampshire voters differ from a jury only because they understand their special power from day one. To the extent they are tentative early on, it’s because they must acquaint themselves with the field. Once that occurs, they begin to resemble a potentially run-away jury.
No one has understood and played this phenomenon better than John McCain. Though McCain has a well-deserved reputation for being less inclined than many to tell voters what they want to hear, he has consistently told New Hampshire voters what they desire to hear most — that their town meetings are the epitome of the democratic process and that they are entrusted with the special role of vetting presidential candidates for the rest of the nation.
And like a good trial team, the McCain campaign (and its friends in the media) have developed a narrative that makes a vote for McCain the most empowering one New Hampshire residents can cast. First, a vote for McCain is a vote for “an old friend.” Second, such a vote will effectuate McCain’s resurrection. Third, a vote for McCain will “blow the whistle on” and possibly derail the rich, well-organized, and too-clever-by-a half choice (to the extent there is one) of the mainstream conservative establishment. That’s a good day’s work even by New Hampshire standards.
Romney’s narrative is solid but much less compelling. A vote for Romney is a vote for a very capable adminstrator who did a good job running a neighboring state, and for the candidate (among those viable in New Hampshire) who currently adheres to the largest number of conservative positions. That was enough to make Romney a strong front-runner in the state for months, but there may not be enough umph in it to close the deal with an empowered electorate that likely will consist of many non-conservatives.
JOHN adds: And the most dangerous jury, the jury that is most likely to get a case wrong, is the one that wants to “send a message.”
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