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Abstract:
While the Supreme Court outlawed discrimination in jury selection over 40 years ago, both empirical studies and candid interviews show that lawyers routinely rely on characteristics such as race, gender, and religion in striking prospective jurors. In large part, this practice continues because, when challenged, attorneys proffer non-verbal factors such as facial expressions, inattentiveness, eye contact (or lack thereof), or even laughing or coughing to justify their peremptory strikes. Without a way to assess the validity of these reasons, the trial judge and then the appellate court on review, have little ability to enforce the anti-discrimination prohibition set forth in Batson v. Kentucky. To give teeth to Batson's protection against discrimination in jury selection, both trial judges and appellate courts should use videotapes of voir dire proceedings to assess the credibility of attorneys proffering neutral reasons for striking jurors, particularly when those neutral reasons are based on non-verbal factors that cannot be assessed from a written transcript. Although many appellate courts have been reluctant to rely on "videorecords" for fear of intruding on the province of the fact finder, the Batson inquiry is unique enough and important enough to warrant a departure from reliance solely on a cold, written record.

jury, jury selection, voir dire, batson, appellate review, videotape

Abstract:
Three events prompted this article. The first was the authors' visit to Uganda in which they had the opportunity to talk to the faculty at Uganda's Law Development Centre about what the future held for the students graduating from that program. Would those students, most of whom had attended primary and secondary schools that lacked not only desks and books but also running water and electricity, be able to find law jobs in Uganda, or would they be forced to leave the country to secure employment that matched their education? The second event was a conversation with one of their own students, a student who had come to law school because his job as a software engineer had been outsourced to India. This student had just learned that the law firm to which he had applied had decided not to hire a new associate but to instead outsource some of its legal work to attorneys in India. The third event was the publication of The World is Flat, a book that discusses globalization, and more general media coverage on what appears to be a new wave of outsourcing: the offshore outsourcing of professional services. As a result of these events, this Article explores whether Ugandan attorneys could provide outsourced legal services - as Indian attorneys are doing now - to countries like the United States and what the costs and benefits of such an option might be.

law practice, outsourcing, Uganda, India, Africa, legal writing