You might think this is not such a big deal. It actually happens quite often. The courtroom might be stifling. The juror might have had a late night. It might be right after lunch on the juror had a big meal. The questions or answers from a particular witness giving testimony might be less than interesting.

What is a trial attorney to do when one of the jurors falls asleep during the course of testimony?

Can the attorney go over to the juror and wake him up? Can the attorney motion to the juror sitting next to him to gently prod the sleeping juror to wake him up? Can I go over to the court officer and ask for a favor to wake the juror up? Can I ask the judge to stop the proceedings and wake the juror up?

The reality is that none of these are great options.

First of all, I don't want to look like a bad guy who is waking somebody up from their nap. Second, I certainly don't want to embarrass anyone in front of the other jurors.

One of the most tactful ways to handle this is to whisper to the court officer that one of the jurors is sleeping and ask if he would politely go over and wake him up.

The other tactful alternative is to ask the judge in a sidebar conversation if either he or the court officer could wake the sleeping juror up.

This is a touchy situation that has no great alternative solution. It's also something that happens frequently.

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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