Deliberations

What Have You Missed?

The better the trial lawyer, the better her sense of what experiences have been important to other people -- that is, to jurors.  But we all have blind spots.  One of mine, it turns out, was Michael Jackson.

I know I risk losing subscribers when I say this, but I missed him entirely, or more accurately missed his music and his impact entirely.  He was almost exactly a year younger than I am, and we're both from northwest Indiana, so early on, I liked him a lot.  In junior high school, we all sang along with "Rockin' Robin."  But when his solo career started with songs like "Ben," I must have tuned out.  When "Thriller" came out in 1982, I was a young lawyer trying to stay calm with music I'd liked in college, and I just missed it all.  Before Jackson died, I couldn't have hummed a single line from "Billie Jean" or "Beat It."  I knew his biography included moonwalking and plastic surgeries and maybe oxygen tanks and allegedly pedophilia; if you'd asked me to describe him in two words, I probably would have picked sad and weird.

"An outsize, mesmerizing talent"

So I'm shaking my head as I watch footage of streets full of mourners, and listen to tributes from people of all ages and from all corners of the arts.  (Here's a collection of samples from Rolling Stone.)  Did Fred Astaire really say "That's the greatest dancer of the century"?  (I'm not linking because I can't find a solid source, but the quote is all over the web right now.)  Was Jackson really "in possession of an outsize, mesmerizing talent," as the New York Times summed it up?  Was he really a symbol of peace and hope to an entire "We Are The World" generation, as young fans on TV lined up to say into the microphone?

Apparently he was.  It wasn't that I'm too old (he had plenty of older fans) or that I disdain pop culture (I know far too many "Friends" episodes by heart).  It was just that his particular combination of personality and musical style didn't speak to me, so I ignored him.  I truly had no idea. 

What are you missing?

Here's the larger point for trial lawyers in this little memoir:  you're probably missing something too.  And it might not be small; it might be, like Michael Jackson, something that a lot of jurors would list among their greatest inspirations and influences.  It's worth pausing at moments like this to consider what you're missing, and whether you could open a little further to the experience of people who are not you.

(Photo by LainerJeanTater at http://www.flickr.com/photos/lainerjeantater/3669419395/in/set-72157620556773637/; license details there.)

What To Do If A Juror Tries To Bribe You

Some stories don't need a fancy essay.  Like this one, from the AB A Journal: 

A federal juror has been charged with bribery and contempt of court after allegedly seeking money from a defense lawyer in a tax evasion case against a St. Louis-area automobile dealer.

Dorothy Hendricks is accused of calling a unidentified defense lawyer in the U.S. Virgin Islands case over a $300 million tax shelter there and asking the attorney to put a price on a not guilty verdict, according to the Belleville News-Democrat and the St. Louis Business Journal.

Deliberations' tip of the day:  Do what this lawyer did.  "The lawyer reported the March call to the presiding judge the next day."  And got a not-guilty verdict anyway!  Poetic justice.

(Photo by Dave-F at http://www.flickr.com/photos/frield/1507671920/; license details there.)

Why Your Witness Didn't Get Better After Watching Herself On Tape

Have you ever been told that to help a witness understand how to make a better impression, you should videotape her and have her watch the tape?  Has that technique worked for you?

It hasn't worked all that well for me.  For every witness who has been helped by watching herself on tape, I've seen several more who frankly admit they're not seeing what I'm seeing, or worse, pretend they do when it's clear they don't.  Now a new study suggests my witnesses aren't the only ones with this problem.  We're simply not able, this study suggests, to accurately assess our own body language.  

To see ourselves as others see us

BPS Research Digest did a great write-up on the study today.  Read the whole thing, but here's the key part.  Subjects were asked to rate their own levels of introversion or extroversion.  Then they were asked to tape a video commercial -- for another purpose, they thought.  But then the researchers told them the truth, taught them some tools to interpret body language cues to introversion and extroversion, and asked them to rate themselves again after watching themselves on tape.  They couldn't do it:

Long story short - they weren't able to. The participants' extraversion scores on the implicit test showed no association with their subsequent explicit ratings of themselves, and there was no evidence either that they'd used their non-verbal behaviours (such as amount of eye contact with the camera) to inform their self-ratings.

And it wasn't that the body language cues were too subtle to catch.  The researchers showed the same tapes to other subjects, giving them the same little course on how to interpret body language.  The outside observers did a far better job of interpreting the tapes.

Better ways to use video

This is one of those emperor's-new-clothes moments in science.  I've heard so many times that witnesses will magically see their faults on video that I sometimes wondered whether I was doing it right.  Now, though, I can confidently pass on the ways I've become comfortable using video in witness preparation.  What it boils down to is know your witness:

• It's a rare witness who can learn anything from video alone.  If you're asking someone to watch herself on video, you also need to be very specific verbally about what you're noticing in the video, what you think it conveys, and exactly how to change it.  (The terrific consultant Katherine James took one look at the tape of my television interview in March and said, "See how your forehead keeps wrinkling?  You're trying too hard.  Relax and slow down next time."  She was absolutely right.)
• Some witnesses should never see tape of themselves.  Some are intimidated by the sight of themselves on a television screen, at the very time when you're trying to instill confidence.  Others like their taped presentation so much it reinforces their weaknesses. 
• The main person who's going to be helped by videotape is usually you, so if you're using it, take the time to learn how to use it well.  New research on "microexpressions" by Paul Ekman and his colleagues is fascinating, for example.  (The presentation by Ekman trainer and researcher David Matsumoto was the talk of the American Society of Trial Consultants' annual meeting last week.) 
• Try different things with the tape; turn the sound down, watch it fast.  Watching a videotaped deposition awhile back, I fast-forwarded through a repetitious portion -- and realized that the witness was breathing in such huge gulps that her shoulders moved at least three inches up and down over each ten- or fifteen-second cycle.  I hadn't seen it at regular speed.
• When teaching any skill, it's usually more effective to show what to do than what not to do.  Instead of focusing on taped faults, think about demonstrating yourself what does work.  Be your own tape.

(Photo by Sam Greenhalgh at http://www.flickr.com/photos/zapthedingbat/3028956788/; license details there.)

A Good Juror Story

The news is full of "bad juror" stories.  It's not that there are so many of them; but when they do come up, they bounce all over the media.  The bored juror who went AWOL in Oregon last month hit the ABA Journal on May 20, and was still making headlines in England on Friday.  Just in the last few days we've had stories of a female juror who rekindled a relationship with the defendant's son during the trial; Al Roker in trouble for posting jury duty updates (including pictures of his fellow prospective jurors) on Twitter; and a California juror who swore she didn't talk to the defendant's sister during trial, while defense counsel says they have a tape that proves she did. 

I admit I can get sappy about juries sometimes, but somebody has to tell the much more common good stories once in awhile.  Here's one, sent to me by Milwaukee County Circuit Court Judge John DiMotto, a friend and sometimes commenter on this blog.  Judge DiMotto sent this E-mail he got from Milwaukee juror Jim Wied.  "I think he is typical of a lot of people who are called" to jury duty, Judge DiMotto told me -- "not looking forward to it but [coming] away with positive feelings."  Mr. Wied had written:

Last week I was one of the jurors in the [I've omitted the name] trial. I just wanted to say I appreciated the detailed information you provided to the jurors on the trial process . This was my first time selected for a trial and I was uncertain what to expect. All juror members expressed a similar appreciation regarding how the case was handled and your willingness to take the time to explain the seven steps involved in a trial.

I have to admit when I reported for jury duty, due to my work responsibilities, I was initially hoping not to be selected for a trial . After last week's trial I came away feeling this was a positive experience. My attitude, should I be called for jury duty again, would be a willingness to serve rather than as an interruption in my life. Your comments on the role of jurors, patience in answering questions and concern that jurors feel comfortable with their responsibilities are obviously the reasons for this change.

Thanks for making this a meaningful experience.

For lawyers and judges, the most important part of Mr. Wied's message is the active verb in the last sentence.  Lawyers and judges have the power to make jury duty meaningful or not -- by explaining what's going on, by showing our own respect for the jury system, by remembering how much context we need to provide.  Often, the difference between an engaged and involved juror and a bored and cynical one isn't the juror; it's us.  

Thanks to Mr. Wied for permission to use his words here.

(Image posted by Playingwithbrushes at http://www.flickr.com/photos/playingwithpsp/2561003841/; license details there.)

The New Jury Expert Is Out, And I'm In It

The May issue of the American Society of Trial Consultants'  The Jury Expert is out, with all the good stuff you've come to expect, plus I have an article in it too:  Juror Stress: The Hidden Influence of the Jury Experience.  The rest of the impressive table of contents is:

Narcissism in Gen Y: Is it Increasing or Not? Two opposing perspectives, by Jean Twenge, Keith Campbell, Kali Trzesniewski, Brent Donnellan

Two articles (authored by researchers with opposing perspectives on the prevalence of narcissism in Gen Y) present evidence for their differing positions on narcissism and Generation Y. Three experienced trial consultants offer their reactions on how this controversy should be considered in litigation advocacy. Each set of authors then responds to the trial consultant comments.

Asking the Tough Questions: How to Examine a Child Witness in Sexual Abuse Cases, by Roger Arnold, Renee Fields

How to question child witnesses in sexual abuse cases without re-traumatizing the child or looking like a bully. Matter-of-fact and straightforward strategies and sample questions.

The Key to Voir Dire: Use Your EAR, by Susan Macpherson, Jeremy Rose

A voir dire strategy to help you identify the impact of a juror's prior experiences on your specific case facts and to aid you in making good decisions about striking specific jurors.

Deception: "Do You Swear to Tell the Whole Truth and Nothing But the Truth, So Help You God?",  by Andrew Sheldon

Improve your litigation advocacy by learning (and then practicing) tactics recognized as legitimate detectors of deception.

How Jury Service Makes Us Into Better Citizens, by Eugene P. Deess, John Gastil

An article ten years in the making on how the process of participating in jury deliberation makes us better citizens. With responses by two experienced trial consultants.

Jurors and Technology in Trial: What Were Once Vices Are Now Habits, by Ted Brooks

How technology can be used in high profile trials to clearly communicate your message and aid jurors in hearing it.

Redefining Credibility: Turning Expert Witnesses into Teachers, by Richard Gabriel

An experienced trial consultant presents his perspective on the importance of preparing expert witnesses to be better teachers for your jury.

What Preparation Does Your Witness Need?, by David Cannon

An experienced trial consultant looks at how to identify the specific sort of preparation your expert witness needs by assessing witnesses individually and planning tailored interventions.

Why Are Mean Women So Fascinating?

  The most interesting thing about the New York Times article on female bullies in the workplace . . . is how interesting it apparently is.  Four days after it appeared on line and three days after the print edition, it's still among the ten most E-mailed articles on the entire Times site.  Every other article in the top ten (as I write this on Wednesday evening) appeared the print edition today or yesterday.

Here's the article's starting point:

It’s probably no surprise that most of [workplace] bullies are men, as a survey by the Workplace Bullying Institute, an advocacy group, makes clear. But a good 40 percent of bullies are women. And at least the male bullies take an egalitarian approach, mowing down men and women pretty much in equal measure. The women appear to prefer their own kind, choosing other women as targets more than 70 percent of the time.

"We've got enough obstacles"

Out of all the news that's fit to print, what is it that people find so fascinating about that?  It's different for different people, as the article suggests:

• It's surprising to some, since bullying is "antithetical to the way that we are supposed to behave to other women" (said Peggy Klaus, an executive coach in California).

• It's familiar to others, who "will nod in instant recognition" when female bullying is mentioned.

• It's challenging to feminists: "How can women break through the glass ceiling if they are ducking verbal blows from other women in cubicles, hallways and conference rooms?"

• It shows how vulnerable women feel in the workplace, according to Canadian researchers cited as finding "that some women may sabotage one another because they feel that helping their female co-workers could jeopardize their own careers."

• It shows how women's behavior is misunderstood, to those who think the perception of female bullies is "stereotyping and women are only perceived as being overly aggressive".

• It may suggest we're redefining bullying itself, or at least that's how I reacted to the question used in one cited survey to define it:  "Over the last 12 months, have you regularly: been glared at in a hostile manner, been given the silent treatment, been treated in a rude or disrespectful manner, or had others fail to deny false rumors about you?"  (I'm almost as nice in person as I am in this blog, but I have to admit I glare from time to time.)

• Some find it sexist that we're even asking the question, and "will point out that people of both sexes can misbehave."

• Some just sigh:  “We’ve got enough obstacles; we don’t need to pile on any more.”

The article doesn't mention the iconic fascination of a catfight, but that has to be part of it too.

I don't know which of these factors is most meaningful, or which way they will cut, in a case where gender is an issue or, as important, where it's simply something jurors will notice.  (As they will if you're a woman, or your client or your expert is, or your opponent is.)  What's clear is that whatever importance you thought gender had in your case, you might be underestimating it.  In any given few days, the Times has some amazing articles.  But this is the one people are still sending each other.

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Related posts here:

• Sometimes It's Hard To Be A Woman
• When Women Judge Women
• Women Lawyers, Juries – And Stress?

(Photo by Tommy Jørgensen at http://www.flickr.com/photos/tommyhj/346075714; license details there.)

A Good Week For Research

It's only Tuesday, but the news this week is already unusually rich with research of interest to jury folks.  Samples:

--The power of rudeness.  Via BPS Research Digest, the blog of the British Psychological Society:  "Seeing one person be rude to another can stunt a person's creativity, impair their mental performance and make them less likely to be civil themselves. "  The study is Porath and Erez, "Overlooked but not untouched:  How rudeness reduces onlookers’ performance on routine and creative tasks," in the May issue of Organizational Behavior and Human Decision Processes.  Maybe that's why your opponent's style sometimes seems like it's working.

--Alcoholics among us.  From Jane Brody in the New York Times, startling numbers on the alcoholics who "are able to maintain respectable, even high-profile lives, usually with a home, family, job and friends."  It's millions.  And "serve on juries" is something else they can do.

--Holier than thy client.  Also from the Times, a collection of the research showing not only that people "tend to be overly optimistic about their own abilities and fortunes" -- we've "long known" that -- but that "this self-inflating bias may be even stronger when it comes to moral judgment."  If you've watched mock jurors tell each other what they would have done in the crisis the defendant was faced with, this won't come as a surprise.

--Bad mood, good memory?  From the Situationist blog, a study where "subjects were able to remember three times as many items on cold, windy, rainy days when there was sombre classical music playing as they were when conditions were sunny and bright.  Rainy-day shoppers were also less likely to have false memories of objects that weren’t there[.]"  If your case is complicated, the solemn courtroom atmosphere might be a good thing.

Just some things to think about.

(Image by Jim Sher at http://www.flickr.com/photos/blyzz/407850690; license details there.)

And Now, The Rest Of The Judge's-Mother-On-The-Jury Story

About a year ago I wrote a post about a Wisconsin court of appeals opinion affirming a small-town trial judge who refused to strike his own mother from the jury for cause.  The post was fun to write, and I remember it fondly because other than my Blawg Review post, it's the only post here that Above The Law ever linked to, so I got all kinds of visitors from it.

To be honest, the opinion itself -- like many unpublished opinions -- wasn't all that interesting.  But today the Wisconsin Supreme Court reversed it, and that opinion is a good read.

There are three opinions, actually.  The three concurring justices (in two opinions) wanted simply to correct the trial judge's mistaken belief that there was not "any legal basis for excusing" his mom, without binding future judges to rule one way or the other on their own mothers if the occasion arises.  The three majority justices¹ went much further, holding that a judge's-mother-juror is always unconstitutional:

[W]e conclude that the defendant was deprived of his right under the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution to be tried by an impartial jury and accordingly reverse the conviction and order a new trial.  A presiding judge's mother serving as a juror is a special circumstance so fraught with the possibility of bias that we must find objective bias regardless of the particular juror's assurances of impartiality.

Together, the opinions are a thought-provoking illustration of two viewpoints on the trial judge's task in jury selection.  If you live in Wisconsin, they're also a little handbook, since they're the most current synopsis of the "objective bias" and "subjective bias" framework Wisconsin courts use to analyze jury selection issues.

Your move

There's a strategy component to the case that's interesting too.  After Judge Eaton (that was his name) denied the motion to strike his mom, defense counsel decided not to use a peremptory strike on her, and left her on the jury.  Under current Wisconsin law, that was the only way to preserve the issue on appeal.  The case that says so is State v. Lindell, which sets out the chess game clearly:  "If the circuit court erroneously fails to exclude a prospective juror who should be struck for cause, the defendant may take his or her chances and refuse to exercise a peremptory challenge, wait until the jury renders its verdict, appeal if he or she does not like the result, and then receive a new trial."  The prosecutor is a player too:

Anticipating the defendant's possible strategy, the State has three courses of action: (1) It can join the defendant in urging the court to remove a juror for cause; (2) it can exercise one of its own limited peremptory strikes to remove a juror who should have been struck for cause; or (3) it can do nothing and risk a new trial if an appellate court finds that a biased juror sat on the jury. 

That quote is from Lindell.  The Supreme Court's opinion today is State v. Tody.

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¹ If you're counting, you got six justices, all concurring in the result but split on the precedent they wanted to create.  That's because one of the seven justices didn't participate.  I'm not enough of an appellate guru to figure out why the majority opinion is a majority opinion under those circumstances, but it sure sounds like one.  If you know, please comment below.

 

Susan Boyle In The Eye Of The Beholder

You've seen it, right?  Tens of millions of people have.  It's the video of plain, middle-aged Susan Boyle, stunning the "Britain's Got Talent" judges and then the world with her lovely voice. 

Exceeding expectations

There are at least two jury lessons in her story.  One is already covered at the Situationist and at Eric Turkewitz's New York Personal Injury Law Blog, so I can be quick with it:  expectations are critical.  If Susan Boyle had been beautiful, beautifully made up and coiffed, and presented to us as a professional opera singer, no one but her family would have watched her YouTube video.  (The Situationist describes an experiment "in which persons listen to acclaimed violinist Joshua Bell–either while he is disguised as a subway peddler or while performing normally at a symphony," and the difference "enormously influences how they regard his music.")  It's what some researchers call the "talking platypus phenomenon" -- the idea that we judge people not on their skill and talent alone, but on their skill and talent as compared to what we expected. 

Eric explains ways to use this knowledge.  It's not only the strategic tool he describes, though; it's also a confidence builder.  If you're, say, a woman, and concerned about the research suggesting that jurors perceive male lawyers as more competent than women, here's your answer.  Exceed expectations -- and if you're good, you will -- and the research suggests you'll actually get a "bump" in jurors' perception.  The same is true for anyone whom jurors might judge harshly at first sight.

The eye of the beholder

The second lesson doesn't have much to do with Susan Boyle -- which is the point.  When everyone is talking about somebody, it's easier to see something we often miss.  Each person is different, and therefore each person's impression of the thing we're describing is different. 

So Susan Boyle changes depending on who's looking at her.  The New York Times notes that she's "become a heroine not only to people dreaming of being catapulted from obscurity to fame but also to those who cheer her triumph over looks-ism and ageism in a world that so values youth and beauty."  Meanwhile to an unromantic Milwaukee Journal/Sentinel business reporter, she's a sales driver; an article there this week describes how her fame has boosted local sheet music sales.  An op-ed piece in the Washington Post collects other reactions. 

My favorite demonstration of the Susan-Boyle-is-what-you-make-her effect was in the roundtable discussion on This Week With George Stephanopoulos on Sunday.  (The Susan Boyle conversation starts with about 2:40 left in the video.)  From four well-known pundits, we got four Susans: 

• To Peggy Noonan, she was about reality television and the way we respond to it.  "Sometimes you know you're being manipulated a little bit; you know it, you watch, and you still burst into tears."

• To George Will, she was all that's great about democratic government.  "It plays to a perennial belief that democracies are bumpy with undiscovered talent, and it happens to be true."

• To Sam Donaldson, she invoked our personal ambitions.  "All of us Clark Kents want to be Superman.  We want more Harry Trumans to be great presidents.  I myself want to sit down and play piano at the Kennedy Center, and play so that Rachmaninoff's ghost turns up his ears."

• To Cokie Roberts, she was about authenticity.  "I couldn't get over the contrast between her and the judges.  . .. They were Barbie and Ken; they were the most fake-looking people I've ever seen.  And there she was, this totally genuine person.  It was so refreshing."

To me, she's about us -- how different we are, and how differently we see things.  One of the biggest mistakes lawyers make in jury trials is to assume that if they like the key witness and think the evidence is strong, the jurors must react the same way.  They won't, because each juror is different.  Call it the Rule of Susan Boyle.

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Related posts here:

• Beauty And The Juror, Parts I and II

• Sometimes It's Hard To Be A Woman

• What We Are Is What We See

(Photomosaic image by Gilberto A. Viciedo at http://www.flickr.com/photos/viciedo/3450613461/; it's amazing at full size, tiny tiles of butterflies, flowers, and birds.  License details on the Flickr page.)

Sleepers

Two jurors who fell asleep have been replaced at an Ohio financial fraud trial heavy in testimony about bookkeeping and check-writing.

That's the opening line from an Associated Press story out of Akron yesterday, but unless you're following that particular trial (of former executives of Evergreen Homes), the main thing that's newsworthy is that these sleeping jurors made the paper while other jurors slept in trials all over America. 

It's been covered here before, but it's worth revisiting.  If you're a trial lawyer, you've seen jurors sleeping.  The key points are:

1.  People are tired.  Really, really tired.  They're holding two jobs, or staying up late with kids, or standing up all day, or all those things.  Put one of those folks in a chair, in a quiet room, with no talking required or even allowed, and it's amazing they stay awake as long as they do.  And like many things, our national fatigue is getting worse, not better.  The National Sleep Foundation's 2009 survey concludes that "The number of people reporting sleep problems has increased 13% since 2001. In the past eight years, the number of Americans who sleep less than six hours a night jumped from 13% to 20%, and those who reported sleeping eight hours or more dropped from 38% to 28%."  (The National Sleep Foundation is funded in large part by mattress and drug companies, but they claim research independence, and even if you discount their numbers, people are tired.)  On top of our other worries, nowadays we're losing sleep over the economy.  "One-third of Americans are losing sleep over the state of the U.S. economy and other personal financial concerns," the NSF said in March. 

2.  Fatigue affects decisionmaking.  Fatigue not only impairs memory and learning generally (Newsweek had an article last week summarizing recent research), but a a 2007 study suggests it specifically impairs moral judgment. 

3.  You can often spot fatigue in voir dire if you remember to look.  Tired jurors often look tired, will say they're tired, and will make you tired when they describe what they have to do in a typical day.  You'll miss it if you're focus only on themes and attitudes in jury selection. 

4.  Sustained sleepiness is reason to dismiss a juror.  In most courts and most states, this is a no-brainer.  A dozing juror can't hear the evidence and thus cannot decide the case on the same evidence as the others.  If a juror who keeps falling asleep isn't dismissed, it's usually because a lawyer forgot to ask, unless the trial has gone on so long and the panel is so small that the dismissal would mean (or threaten) a mistrial.

5.  You might be boring.  As we've noted, people are tired, so if a juror falls asleep while you're talking, it's usually not entirely your fault.  But think about whether it partly is.  The juror was awake earlier, right?  And if one juror slept through your expert's testimony, how many others daydreamed?  Even if your trial is "heavy in testimony about bookkeeping and check-writing," like that Akron fraud trial, you need to figure out how to make it interesting -- preferably before anybody falls asleep.

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Related posts here:

• Are You Sleeping, Brother Juror?

• Sleep And Moral Judgment

(Photo by Tambako the Jaguar at http://www.flickr.com/photos/tambako/853748895/; license details there, and follow the link to see the rest of his animal pictures, which are wonderful.)