Deliberations

Unforgettable Juror Art

Deliberations collects juror art, as you may know --  drawings and photographs made by real people on jury duty, gathered in what we cheerfully call the "American Gallery of Juror Art."  The collection is meant to show both the light side of jury duty and also the often-missed depth and talent of many jurors.  Much of the work is extraordinary.

A story like this, though, can't just go in the collection.  You have to read the whole thing, but the short version is that artist Alberto Araoz, a 64-year-old Cuban immigrant, sat as a juror in a California murder trial where the victim was a four-year-old girl.  When it was over, he went home and painted the little girl's portrait -- beautifully.  Six months after the trial, he gave the finished painting to her grieving grandparents. 

I've been reading a lot of "jury duty" tweets on Twitter lately, and feeling a little discouraged at the frustration, boredom, and alienation that many people express.  It was awfully good to see this article.

(No picture with this post; just look at the ones in the article.)

When They Don't See What You See

A recent study highlights what might be the most important thing lawyers and clients miss about how juries will react to their cases.  The same evidence that makes you angry at the other side might make jurors angry at you.  I'll show you how it works.

Here's a fact about health care.  Ready?

Many people get diabetes because of social or economic factors in their neighborhoods, such as lack of neighborhood grocery stores or safe places to exercise.

Does that fact make you more supportive of public policies to prevent diabetes, or less supportive?

Existing attitudes change perception

If you're like the subjects in the study by University of Michigan researchers Sarah Gollust, Paula Lantz, and Peter Ubel, your answer depends on what your political orientation was in the first place. "If you are more liberally minded the 'neighborhood explanation' can be motivating, but for people who are more conservative politically, that message can backfire and make them even less interested," Ubel said in the study's press release. "The same information can polarize people."

Mock trials have convinced me that this isn't just a political phenomenon.  A single piece of evidence can bring one juror adamantly to the plaintiff's side and send another firmly into the defense camp. The difference isn't the evidence, it's the jurors themselves -- their backgrounds, attitudes, frameworks.

Unlike many trial pitfalls, lawyers and clients often don't see this one coming.  After all, the same forces are working on them too. They arrive at the mock trial personally convinced, deeply convinced, that the facts are not only indisputable but irrefutable -- that they can only be interpreted one way. When it takes a mock juror less than a minute to use the same facts as evidence for the opposite conclusion, they're shocked.

"Advocacy groups need to be very careful in thinking about who their audience is and what framing will work best for that audience," says Michigan researcher Ubel.  Individual advocates do too.

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The full paper will be in the upcoming December issue of the American Journal of Public Health.

(Photo by Kate McCarthy at http://www.flickr.com/photos/soyunterrorista/48433453; license details there.) 

Look At The Jury Expert Now

The Jury Expert doesn't need me anymore, but I'll keep posting about new issues anyway.

Back in May 2008 when the first on-line issue of the American Society of Trial Consultants' bimonthly journal came out, it got 500 hits, and if Deliberations wasn't the only blog to write about it, it was one of a very few. 

A year and a half later, The Jury Expert is such a celebrity it probably has to wear sunglasses to go to the drugstore.  Each of the last two issues got more than 12,000 hits.  The Texas Lawyer named TJE's great Twitter feed one of the "top 20 legal tweeters" in their Sept 28 issue, and the TJE website is one of the Editor's Picks in the Top 60 Legal Websites for ABA's 2009 Tech Show, which starts today.

What made TJE so popular?  Plain solid quality, as in the current issue (September, if you click that link after November comes out).  There is something here you need:

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The Impact of Graphic Injury Photographs on Liability Verdicts and Non-Economic Damage Awards, by Bryan Edelman

Over the years, the use of graphic, and at times gruesome, visual imagery in the courtroom has become commonplace. Although the use of such imagery has become the norm, the prejudicial nature of this evidence continues to be a contested issue in courtrooms across America. This paper focuses on the impact of graphic injury photographs in a civil dispute where the evidence favors a defense verdict.

Civil Case Mediations: Observations and Conclusions, by James A. Wall, Jr. and Suzanne Chan-Serafin

"You can see a lot by just looking". The authors observe 62 mediations in two cities to identify themes and patterns in successful mediations. Three experienced trial consultants offer their reactions to author assertions.

Identifying Leaders, by Barbara Rich Bushell

An experienced jury consultant discusses how jurors pick presiding jurors and how you can identify their most likely picks as you are engaged in voir dire and jury selection. 

Hate Crimes and Revealing Motivation through Racial Slurs, by Gregory S. Parks and Shayne Jones

If a white man assaults a black man and during the assault repeatedly refers to the victim as a "nigger", is it possible that ISN'T a hate crime? A response to the 'hip-hop culture' defense used in the Nicholas Minucci case by two writers who believe the use of racial slurs should be viewed as prima facie evidence that a hate crime has been perpetrated. Two experienced trial consultants offer their reactions to this assertion.

Anthropomorphism in Technical Presentations, by Jason Barnes

How do you explain the often dry technical information in intellectual property cases in a way that is understandable to a lay jury? Try anthropomorphism. An experienced graphic designer and trial consultant offers his experiences in strategies to help jurors emotionally connect with technical data.

Will It Hurt Me In Court? Weapons Issues and the Fears of the Legally Armed Citizen, by Glenn Meyer

An examination of how gender of juror, gender of shooter & type of weapon used interact to modify verdict and sentencing. Two experienced trial consultants respond.

Alternative Cause Strategies in Product Liability Litigation: The Need for Affirmative Defenses, by Sean Overland

An experienced trial consultant breaks down a corporate defendant's case into component parts and demonstrates how alternative causes can be presented for a complete and persuasive defense strategy. 

"Jury Management For The 21st Century," New From The NCSC

Judge Gregory Mize has contributed so much to this blog already -- but look what he's sending now.  He wrote the rest of this post, and the new site he's announcing is really impressive.  It's not just for judges, either.   Any place your judge might go for jury guidance is a place you want to go too.

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The National Center for State Courts has just published several model judicial educational curricula focusing on two important components of jury trials: jury selection and jury deliberations. This education series, entitled "Jury Management for the 21^st Century," provides courts and judicial educators with a wide variety of teaching modules that can be flexibly arranged into programs that span one hour, a half-day, or more.

The "Managing Jury Selection Effectively" curriculum contains six, 60- or 90-minute modules: (1) "Obtaining Crucial Information from Prospective Jurors," (2) "Ruling on For-Cause and Peremptory Challenges," (3) "Judge & Lawyer Collaboration during Jury Selection," (4) "Respecting Juror Privacy & More during Jury Selection," (5) "Time Management," and (6) "Promoting Judge-as-Educator during Jury Selection."

The "Helping Troubled Deliberating Juries" set of courses contains five, one-hour modules: (1) "Improving the Deliberative Process," (2) "Helping Jurors Overcome Jargon," (3) "Responding to Deliberating Juries Having Questions or Reporting an Impasse," (4) "Responding to Misconduct/Mishaps in Deliberations," and (5) "Respecting Juror Privacy & Responding to Their Stress."

Thanks to a grant from the State Justice Institute and the International Academy of Trial Lawyers Foundation, the curricula are available without cost at http://www.icmelearning.com/jtm/. There, you will see that each module provides users with not only with detailed learning activities but also accompanying PowerPoint slides and extensive reference resources such as the A.B.A. Principles for Juries & Jury Trials.

To support the curriculum, NCSC and our project partner the National Judicial College will endeavor to maintain a rolling roster of experienced jurists, empirical researchers, respected veteran trial lawyers, trial consultants, and articulate former jurors who are willing to serve as faculty for programs that utilize this curriculum. It is envisioned that these faculty members would complement faculty based in the host jurisdiction -- together constituting a talented orchestra ready to present information-rich and locally relevant programming.

In addition to the weblink shown above, a limited number of CDs containing the entire curriculum is also available through my NCSC office. I hope the judicial members [editor's note: and nonjudicial as well] of the "Deliberations" community will make good use of this educational tool.

Just The Facts

What does it take to get a jury in a traditionally conservative area to award $49 million in a personal injury case?  San Francisco lawyer Randall Scarlett just did it, for a 21-year-old client who suffered traumatic brain injury in a car accident. 

Big plaintiffs' verdicts are often criticized as the product of runaway emotion, but Mr. Scarlett's explanation of his success in the newspapers is more practical than emotional.  "What the money represents is the terrible price associated with this," he told the Silicon Valley Mercury News.  "This is what it costs to rehabilitate an injury such as this."  In Law.com, he is quoted as saying:

This jury got it. In closing, I indicated to the jury that one can lose a leg, one can lose an arm, and there's a prosthesis that medical scientists have come up with. There is no prosthetic device when one loses the ability to use one's brain, one's sense of self and one's ability to have cognition.

A winning party's press quote doesn't always reflect what really happened in court, and I don't see any juror interviews on this one.   But whether this particular jury worked from emotion, logic, or both, the story is a reminder that the most powerful jury arguments are often just facts.  You can rarely make jurors angry by yelling, or make them cry by crying.  But the facts, well gathered and simply explained, can move them deeply.

(Photo by Bart Heird at http://www.flickr.com/photos/chicagobart/3364948220/; license details there.)

Mark Bennett's Simple Rules For Jury Selection

We love simple rules here at Deliberations, and so I'm only a little embarrassed that I'm not the blogger who came up with a set of simple rules for better jury selection.  Mark Bennett is, and he's building it as we speak. 

Here's Mark's "Simple Rules" post; he updates the links as he posts detail explaining each rule.  By the time he's finished, you'll know the Nike Rule, the Shrek Rule, the Beer Pong Rule (no link yet), and the rest -- and you'll be better at this.

Please don't argue with Mark (or with me) about this concept of rules.  As he says, "The test of a good rule is not whether it is always right (rules seldom are) but whether it is right more often than the alternative—which could be another rule or no rule at all."  The other test of a good rule is whether you remember it so that it continues to challenge you -- and I'm guessing you'll remember the Shrek Rule.

There's a book in this, Mark -- think about it.

(Photo by John Haslam at http://www.flickr.com/photos/foxypar4/502077255/; license details there.)

They're Out There

The New York Times had a nice article yesterday on conspiracy theorists, especially those who believe the Apollo moon landings were a government hoax.  It's a good reminder that -- unlike all the things they believe are out there -- conspiracy theorists really are out there, and on juries.

You know about the most widely held conspiracy theories:  moon landings a fraud, 9/11 attacks and the Holocaust hoaxes too, Elvis isn't dead, the CIA killed John F. Kennedy, and so on.  What you might not realize is how common it is to find a broader sort of "conspiracy mindset," an approach to the world, in jurors.

The lawyers did it

You'll see it, though, if you do a few mock trials.  Almost every mock trial I've worked on has had at least one person who could fairly be called a conspiracy theorist.  They're the folks who find gaps you never dreamed you'd left in the evidence (sometimes gaps that aren't there at all) and fill them by imagining dark secret dealings behind the scenes.  I'm not talking about legitimate inferences from suggestive evidence; I mean wacky conspiracies.  In one mock trial about contract negotiations that began, fell silent, and then recommenced after several months, a mock juror suggested to her group that the transaction lawyers on both sides of the deal must have had a secret agreement going.  In the observation room, eyebrows rose as the lawyers and clients realized that no one on the panel was going to contradict her.

Conspiracy theorists aren't simply common; they also have a lot in common, and that is separately important to trial lawyers.  Here's a character sketch from the New York Times article.  As you read it, think about which side wants this juror:

Ted Goertzel, a professor of sociology at Rutgers University who has studied conspiracy theorists, said “there’s a similar kind of logic behind all of these groups, I think.” For the most part, he explained, “They don’t undertake to prove that their view is true” so much as to “find flaws in what the other side is saying.” And so, he said, argument is a matter of accumulation instead of persuasion. “They feel if they’ve got more facts than the other side, that proves they’re right.”

Mark Fenster, a professor at the University of Florida Levin College of Law who has written extensively on conspiracy theories, said . . . at the core . . . is a polarization so profound that people end up with an unshakable belief that those in power “simply can’t be trusted.”

* * * *

Adam Savage, the co-star of the television show “MythBusters,” [said that the theorists] never give up. “They’ll say you have to keep an open mind,” he said, “but they reject every single piece of evidence that doesn’t adhere to their thesis.”

Got the picture?  Focused entirely on what the other side failed to prove, convinced that those in power are corrupt liars, and willing to argue longer than anyone else.  A prosecutor's nightmare, most of the time.  Definitely not the profile many business defendants are looking for.  But hardly a clear call for any party, even if you're accusing the other side of corruption.  These are forceful, voluble, unpredictable jurors who won't compromise.  Learn to recognize them where you can; and if you leave one on the jury, pack extra antacid in your briefcase. 

(Photo by xamad at http://www.flickr.com/photos/xamad/518876976/; license details there.)

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.)