Deliberations

IN DEFENSE OF LITIGATION CONSULTING...

Every so often, the field of Trial Consulting comes under attack.  Despite our 35 year history, some in the legal field continue to believe that the use of consultants is equivalent to buying car seat warmers.  Sure it feels good in the winter, but warm butts have nothing to do with getting you where you want to go.

Everyone has the right to their opinion.  However, things change dramatically when a judge or prosecutor tries to utilize the law to impose this opinion on parties to a case.

Last year, Sonia Chopra and I (Matt McCusker) wrote an Amicus Brief for an appeal being heard in front of the Iowa Supreme Court.  We were prompted to act when a prosecutor (and judge) prevented a criminal defendant from utilizing his own legally attained funds to hire a consultant to work with his defense team.  According to the State, this service was a “luxury” that the defendant didn’t have a clear right to.  Our brief outlined numerous arguments that questioned this perspective.

Recently, the accused Fort Hood shooter (Major Nidal Hassan) encountered opposition from the prosecution when his team requested funds for help in jury selection and a media analysis exploring how Mr. Hassan has been painted in the press.  In fact, one of the prosecutors suggested that a jury consultant would be doing “tasks performed routinely by attorneys around the world every day.”

Rather than focusing on the problems with the prosecutor’s statement (e.g. lack of jury systems around the world, limited experience many attorneys have with jury selection, unique training consultants have in media analysis and voir dire development, etc.),  I take issue with the implication that consultants do not bring significant added value to a legal team.

The term “consultant” can be defined as a specialist who provides expert advice.  Doctors regularly ask for consults from specialists.  Most major companies hire management and marketing consultants to provide recommendations.  Are these extravagant luxuries?  Should doctors just assume an expertise in everything?  Should a CEO simply develop his or her own marketing plan or implement a homegrown HR process?  Most would think not.

However, popular use of a service is not proof of its efficacy.  Instead, we should turn to the free-market.  The field of Trial Consulting has exponentially grown in use over the last 30 years.  Similarly, the rates charged by successful consultants have risen significantly.  In a capitalist system, a product’s price tends to correlate with its perceived value.  If decade after decade, more attorneys, municipalities and corporations are willing to pay more money for litigation consulting, the value is proven.

 Some may agree that Trial Consulting is valuable, but oppose government-funded consulting to assist criminal defense teams.  This is a valid point.  However, they should also consider that governments across the country (Federal, State and Local) regularly utilize the services of Trial Consultants during high-stakes civil litigation.  So, tax dollars are already going to consultants for the most important government funded civil defenses.  Why should money not also go towards the most important government funded criminal defenses?

Blogger: Matt McCusker

 

MAN WINS PREGNANCY DISCRIMINATION SUIT (Seriously.)

 As I prepare my Mediation Workshop for the upcoming American Society of Trial Consultants Conference (June 17-20), I have been floating in a dispute resolution state of mind. Then, I came across this story...

Eversheds, one of England’s largest law firms, recently found themselves in quite a pickle.  For financial reasons, the firm needed to lay off one of two redundant Associates at their Leeds office (one a bird, the other a bloke).  As experienced barristers, the higher-ups at Eversheds knew a lawsuit would be likely if they chose to sack the female employee who was actively on maternity leave (Ms. Angela Reinholz).  So, they created an “unbiased” rating system and ended up dismissing the “lower scoring” male Associate instead (Mr. John de Belin).  Crisis averted, time for tea.  Or, was it?

In a classic case of “damned if you do, damned if you don’t,” Mr. de Belin sued Eversheds for choosing to terminate him because he “was not on maternity leave.”  With further investigation, it became clear that Ms. Reinholz (the new Mum) had been given “generous marks” on certain scoring measurements that allowed her to edge out Mr. de Belin by half a point in the Eversheds Associate Assessment.  Not surprisingly, Mr. de Belin was awarded £123,000.

There are many crazy lawsuit stories out there:

Musician sued for copyright infringement on silence.

Student sues teacher for being woken up too abruptly during class.

Woman sues police dog for intention to bit.  (Seriously, she sued the dog.)

However, this pregnancy discrimination case is fascinating to me because it is both bizarre and seems like a prime candidate for a mediated resolution.  The way I see it, there were four “inside the box” options:

1.       Lay off the woman on maternity leave and likely encounter a lawsuit.

2.      Lay off the man who was not on maternity leave and subsequently encounter a lawsuit.

3.      Keep both people (who were in redundant positions), lose money, and avoid a lawsuit.

4.      Lay off both people and hire a new person.  Thus, avoiding a discrimination lawsuit, but potentially finding a wrongful termination lawsuit and losing money on training the new employee.

Truth be told, I don’t know what courses of action were considered or proposed and what potential barriers existed.  Despite this, I thought of a flurry of potential “outside the box” mediated cures for Associate redundancy that are all likely cheaper than the costs of a lawsuit defense and subsequent damages award:

·         Offer to re-task one of them to a different area of the practice. (Many people like shifting gears.)

·         Offer a transfer to one of the 47 other Eversheds offices where they wouldn’t be redundant. (Many people want to live abroad.)

·         Promote one. (If they were worth designing a fancy test for, they were worth keeping.)

·         Offer to help them get a job at another firm before the lay off. (People know people.)

(For more on finding alternatives to money awards, see Getting to Yes, a.k.a. the Negotiators’ Bible.)

Many attorneys hate the idea of mediation.  This stems from a variety of reasons, but I think that the most common complaint is the inaccurate belief that mediation is a waste of time and rarely works.  While it is true that many cases do not find settlement agreements on the day of mediation, it is also true that much of the groundwork for an eventual settlement (which may arrive weeks or months later) is established through formalized negotiations.

It is easy to get trapped in a battle of numbers.  This can happen to both clients and attorneys.  The benefit of mediation is not simply to demonstrate case strengths and fight over dollar figures, but also to create an environment where “outside the box” alternatives are floated in conjunction with monetary settlements.  As a former mediator, I have seen huge shifts in dollar values in exchange for such items as: A favorable joint-press release, lifetime access to a beach, and even a simple “I’m sorry.”

Blogger: Matt McCusker

More On Japan: Radio Edition

Another audio installment of Deliberations today:  I got to appear again on Milwaukee Public Radio's "Lake Effect" this morning, talking more about Japan, its new jury system, and my trip there.  The interview (and the rest of today's show) is here; my part is about twelve minutes. 

Thanks again to Jane Hampden and the "Lake Effect" folks for having me back.  Someday I might get used to the sound of my own voice coming out of a radio, but I'm not there yet.

(My picture of a pretty spot in the beautiful Shinjuku Gyoen National Garden in Tokyo; Creative Commons license.)

To Russia With Judge Mize

I'm honored to have a guest post from Judge Gregory Mize, telling of his recent visit to Russia for the first ever "jurors' summit" there.  I've been privileged to write about Judge Mize's work in improving the jury system before:  his surveys of quiet jurors in voir dire will surprise you if you haven't seen them yet.   He did the studies when he was a judge in the Superior Court of the District of Columbia.  Now retired, he's centrally involved in the National Center for State Courts and D.C.'s Council For Court Excellence, on whose behalf he went to Russia and in whose Spring 2008 newsletter this article appears.  I'm very grateful for the chance to spread the word.  Here's Judge Mize:

~~~~~~~~~~~~~~~

Did you know that, shortly after the 1992 creation of the modern Russian Federation, trial by jury was re-instituted after a 7-decade prohibition?  Yes, there is a new landscape of citizen participation in the administration of justice burgeoning in Russia.  I did not know that until I participated in the first-ever Russian jurors’ summit this week in the Moscow.

It all started with the initiative of Leonid Nikitinskiy, a Thomas Paine-type journalist in Moscow.  Leonid heads a guild of Russian journalists who cover court cases.  With recurring reports of court nullification of jury acquittals in serious state criminal prosecutions, Mr. Nikitinskiy decided to lead an effort to comprehensively study Russian jury trials.  His efforts inspired the U.S. Department of Justice to support a conference of 30 former jurors; several Russian trial judges, lawyers, and central government officers; and 4 North American jury trial experts.  During 3 intense days, jurors from 11 disparate regions [in a country expanding 7 different time zones!] described their [sometimes harrowing] efforts to reach a verdict in state prosecutions involving the most serious criminal charges.  The goal of the convocation was twofold: (1) to grasp the real face of jury trials in Russia, and (2) and to bolster its vitality in the future.  Upon reflection, I think we attained the first goal.  Time will tell whether the second aspiration will be achieved. 

I am hopeful for several reasons.  First, a 2-hour opening ceremony for the conference occurred at the Presidential Hotel where many high government officials, including former President Mikhail Gorbachev, rendered praise for the new jury trial system.  Thereafter, about 60 of us headed to a retreat outside Moscow for nonstop discussions and brainstorming.  Significantly, every juror and several legal professionals expressed a belief that jury trials in Russia are the best [and perhaps only] way to stand up against central government corruption or overreaching.  These Russians see that juries are a backstop to their vertical, top-down legal and political culture.  Repeatedly I heard former jurors – including business owners, school teachers, government retirees, and service workers -- affirm that, in their evaluation of criminal prosecutions, they served as the consciences of their communities.  They were often dismayed by the poor quality of the government’s evidentiary presentations.  In their cases, they grappled with many of the same challenges facing American jurors: discomfort caused by separation from jobs and personal routines, difficulties with the concept of “beyond a reasonable doubt,” disdain for legal jargon, awe at the question whether it is better to acquit a guilty person than to convict an innocent one, and impatience with judicial instructions to ignore improperly introduced evidence.  In the end, the jurors’ sentiments were well summarized by the highly respected Moscow attorney Nikolai Gargarin, “I have a dream…. Our public agencies will improve….  If the Ministry of the Interior can have a budget of millions to improve the image of police officers and the military, why not do the same for juries!”

During the proceedings, our American delegation drew attention to the work of three U.S. NGOs  [the National Center for State Courts [Williamsburg, VA], the Council for Court Excellence [Washington, D.C.], and the Fund for Modern Courts [NYC] were described.  We suggested that the group think about engaging a critical mass of other jury trial enthusiasts and civic leaders in Russia to create an NGO in Russia to promote and fortify their fledgling jury trial system.  In that vein, Mr. Nikitinskiy hopes to create a national “Jurors Club,” create citizen education programs about jury trials, and host additional juror meetings in the future.   

As I reflect upon this immensely rich experience, I think I may have witnessed in Moscow something akin to our own Founders’ debates in 1789 in Philadelphia -- brave and visionary citizens struggling to discern a just and better way to govern themselves.

(Photo by Josef F. Steufer at http://www.flickr.com/photos/josefstuefer/14691135; license details there.)

What I Learned About American Juries In Japan

I learned a lot about Japan on my trip there -- the legal system, the Tokyo subway, the easiest way to apologize.  But as I gather my thoughts about it, the first things I want to say are what I learned about my own country -- and more specifically, about American jurors -- by traveling to another place.  Three things stand out:

Not knowing is stressful

There was an odd duality to my time in Japan.  At one level, I was there to deliver a talk about juror stress in America, and I was always rehearsing it in my head.  Jurors feel stress at every turn, I planned to say, in large part because they don't know.  The courthouse is in an unfamiliar neighborhood, they don't know where to park, they don't know where to have lunch.  And, more substantively, they don't feel sure of the law they're supposed to apply, what the burden of proof means, whether they're allowed to fill in the gaps.  Most jurors feel a strong responsibility to do a good job, and it's difficult to face this responsibility when there's so much you don't know.

At another level, even as I went over these points in my mind, I was living them.  I like to think I'm a comfortable traveler, but there was so much I didn't know in Japan.  Everything was backward:  they drive on the left, turn keys to the left, pull the hotel bathroom door open instead of pushing.  A huge number of street signs were only in characters.  There were dishes on the breakfast buffet I couldn't identify even after I ate them.  I got lost for over an hour, hopelessly turned around on the map, working my way back to the hotel by asking two-word questions of every uniformed person I saw.  (Luckily, Tokyo has a lot of uniformed people.)

I've never been a real juror, and I probably never will be.  But in the unfamiliarity of Tokyo, I felt a little like one.  And what helped me?  Two of the same things, I realized, that I was planning to explain that American judges and lawyers use to help jurors get their bearings:  information and kindness.  I found a better map, waiters and those uniformed strangers all tried to guide me, and my Japanese hosts patiently answered all my questions.  The whole experience gave depth to the ideas I was formulating about the stress jurors feel, and how to help them. 

Reject stereotypes

I had been told that the Japanese would assent to any opinion; that there would be long silences in conversation; that protocol was paramount.  I'm sure there's a basis for these ideas about Japan, but the people I met showed that, like all stereotypes, these are misleading.  The Japanese lawyers,  scholars, and journalist I talked to were informal, voluble, and had strong opinions.  The etiquette rules I had read about were flexible and even useful as we talked.  (I had read you're always supposed to comment on the other person's business card, for example.  In fact my Japanese hosts did this -- and I started to do it too, once I realized it's an automatic starter topic for a conversation with a new acquaintance.)  Stereotypes are always at least partly wrong.

Jurors believe in juries

As I prepared my talk on the stresses jurors face and the ways courts and lawyers try to help them, it was clear that American approaches to juror stress are insufficient.  Even the best-managed court system can't fully protect jurors from confusion, angry deliberations, and horrible evidence.  So why, the Japanese wanted to know, do American jurors continue to serve, when jury service can be so difficult?  I was reading studies and juror blog posts for the answer, and it was clear.  Partly because they have to, yes, but in large part because they are proud to. 

Americans widely believe that the voice of the citizen in the courtroom is important.  In the big Harris Interactive poll on juries in January, half of respondents said they would trust a jury more than a judge to render a fair verdict, while only 23% said they would trust a judge over a jury.  (The rest were unsure.)  Juror blogs and the juror questionnaires I've seen repeat this theme often; juror after juror says it will be inconvenient to serve, but it's a civic duty they recognize and value.  The Japanese aren't sure that Japanese jurors will share this feeling.

It sounds sentimental, but it made me feel lucky, and all the more grateful for my trip to Japan.

(My photo of the Imperial Palace grounds in Tokyo; Creative Commons license.)

In Which I Go To Japan

Things have been quiet here lately, but my excuse is good.  I've been in Japan, talking about juries.

As I wrote in September, Japan is in the middle of a historic transition.  For the first time in living memory, serious criminal trials in Japan will be decided not by three-judge panels as they are now, but by a group of six lay citizens and three judges deliberating together.  The saiban-in, as this group will be called, will bring the voices of jurors into Japan's criminal justice system -- and with them oral advocacy, jury instructions, an evidence code, and trials over consecutive days, to name only a few of the changes that are basic to us but unnecessary without a jury.

Since I first wrote about this, I've been in touch off and on with Rob Precht, the New York lawyer who has been working with lawyers in Japan to prepare for the new system.  Rob writes about his experiences at his blog Foley Square.  His posts on the varied Japanese reactions to the idea of saiban-in are compelling.  Both lawyers and potential jurors are by turns worried, confused, and doubtful, and then curious, confident, and full of hope. 

One topic the Japanese keep coming back to, understandably, is the stress this new jury service will create for jurors themselves.  Lay people are being asked for the first time to leave their homes and jobs; sit at the court's table in a public courtroom; listen to what will often be horrible evidence; and share critical decisions, in field they know little about, with judges to whom their natural instinct is to defer.  When Toyo University social psychology professor Kaoru Kurosawa was planning  a symposium on juror stress, Rob suggested that I might be able to speak on how we experience and respond to juror stress in this country -- and the next thing I knew, I was in Japan. 

It was only a few days, but it was the professional experience of a lifetime.  In the next several days, I'll post about it as best I can.

(My photo of kimonos at the Sunday morning market at the Yasukuni shrine, Creative Commons license.)

Juries In A Quiet Land: "Saiban-In" Comes To Japan

If you think the jury system can be problematic here, imagine starting a jury system from scratch -- in a culture known for a level of deference and reticence that would bring most American jury deliberations to a standstill. That's what they're trying to do in Japan.

The new Japanese system for criminal cases will start in 2009. They call it "saiban-in." The plan is that six lay jurors will join each of the three-judge panels who decide cases in Japan today.

Robert Precht is helping them. He's a New York criminal defense lawyer who's now associated with the Juries and Democracy Program at the Maureen and Mike Mansfield Center at the University of Montana. Mike Mansfield was Senate majority leader through most of the 1960s and 1970s, and afterward served as U.S. Ambassador to Japan. The Juries and Democracy Program now run in his name is helping to "prepare Japanese judges, prosecutors, defense lawyers and lay people prepare for this significant transition," their web site says. Precht travels the country giving talks and workshops, and keeps a blog called Foley Square where he writes about his work and posts relevant news stories.

A new set of skills

"Significant" barely conveys how big this change is. The transition isn't just from judges to juries; it's from writing to talk, lawyers to witnesses, authority figures to ordinary people, years to days. Precht writes:

With the advent of the saiban-in system, trial practice will radically change in Japan. Currently, most trials are conducted on the basis of written records. Lawyers submit written reports to the three-judge panel, and the panel renders a decision, often after several years. The saiban-in system will require concentrated trials, conducted through live testimony. Japanese lawyers must learn a new skills-set: how to present live testimony and persuade ordinary citizens.

So Precht starts with the basics. One lawyer asked him to explain the difference between an opening statement and a closing argument, and he searched for a Japanese analogy. "I said [closing] should resemble a Kabuki drama," he says.

"Doesn’t anyone have any opinions?"

Inexperienced or not, the lawyers will have an easy transition compared to the jurors. In one post, Precht reprints a New York Times article describing one of the hundreds of mock trials being staged by the Japanese government to help people understand what jury service will be like. For the system to work, the Times wrote, "the Japanese must first overcome some deep-rooted cultural obstacles: a reluctance to express opinions in public, to argue with one another and to question authority." If this mock jury is remotely typical, that won't be easy:

They preferred directing questions to the judges. They never engaged one another in discussion. Their opinions had to be extracted by the judges and were often hedged by the Japanese language’s rich ambiguity. When a silence stretched out and a judge prepared to call upon a juror, the room tensed up as if the jurors were students who had not done the reading.

"I think there is also the matter of how much he has repented," one of the judges said. "Has he genuinely, deeply repented, or has the defendant repented in his own way? What’s the degree? I mean, some could even say that he hasn’t repented at all."

Hoping for some response, the judge waited 14 seconds, then said, "What does everybody think?"

Nine seconds passed. "Doesn’t anyone have any opinions?"

When it was over, Precht told the Times: "I think people are seriously going to start panicking next year, as citizens actually face the very real possibility of being summoned, and then have to go into this very strange environment, speak in front of authority figures and actually be questioned about their own opinions.” "I'm concerned that’s going to freak people out,” he said.

So he keeps traveling the country, and speaking, and blogging sometimes. He's a witness to something remarkable.

(Photo by Kalandrakas at http://www.flickr.com/photos/eelssej_/508977152/; license details there.)

Juries Come To Kazakhstan

If you've ever taken juries for granted or wished them abolished, it's worth a minute to think about Kazakhstan.  For the first time ever, Kazakhstan is holding jury trials. 

I didn't know anything about Kazakhstan until I looked it up.  It's the largest of the former Soviet republics in central Asia.  Russian forms its long northern border, and to the east it borders China.  It's huge, the ninth largest country in the world by area. 

Kazakhstan's legal system is hardly a showpiece.  The State Department calls its human rights record "poor," listing "abuse and mistreatment of detainees and prisoners," "unhealthy prison conditions," and "corruption in law enforcement, the judiciary, and the legal system" among its many problems.  But with the help of the U.S. Agency for International Development and the Organization for Security and Cooperation in Europe, one thing has changed:  Kazakhstan's death penalty trials have juries now. 

The more things change

How did those first jury trials go?  According to the newspaper Caravan, translated in the blog Neweurasia.net, some challenges are the same whether you've had jury trials for two weeks or two hundred years:

About one third of the candidates informed the court that they could not take part in a trial. Some referred to being swamp at work. The teachers of the state university and the schools turned out to be the busiest people. Others said they had to take care of their sick husbands or wives at home, or worried about their chickens and cows left behind. One candidate, as it turned out, did not speak Russian, a language of the trial, another had an impaired hearing. Satybaldy Nurushev, who was worried about leaving his stock room unattended, became the very first juror in the history of the country’s judiciary.

Concern and hope

Neweurasia.net's Kazakhstan author, named Leila, is thoughtful and probably right in anticipating larger problems to come, problems of race and ethnicity:

[F]rom what I read, the selection of a jury does not provide for language, gender and ethnic criteria. In the United States, there was an infamous 1992 Californian trial in the case of Rodney King, where a jury that consisted mostly of white people acquitted the police officers of excessive force on a black man. In Kazakhstan, with the recent worrying events in Malovodnoe and Tengiz, where members of different ethnicities clashed after ordinary arguments, it might become important too.

Nevertheless she is full of a remarkable hope that juries might bring competence, honesty, and trust to her country's justice system:

I really welcome this news. Jury helps people to see what the trial is like and feel they become part of justice. In Kazakhstan, where people tend to mistrust the courts, having a jury might win back their trust. The defense and the prosecution will try to be more participative and prepare well to present their arguments. It would help combat corruption: it is more more difficult to bribe 11 people than one judge.

A moment of majesty

It's easy to laugh at juries.  When the Lewis Libby jurors asked about the reasonable doubt standard, the whole Internet seemed to rise up to call them morons.  At least twice a week I see the quote attributed to Norm Crosby:  "When you go into court you are putting your fate into the hands of twelve people who weren't smart enough to get out of jury duty."  The renowned trial teacher Herb Stern used to call jurors "undershirted beer suckers," and he had to answer for it in Denver last week. 

I'm in the other camp; I'm a little bit of a jury sap.  It's a flawed system, because we're flawed people.  But every time a room full of potential jurors takes the oath before voir dire, I have to pause at the majesty -- and hope -- of that moment and what it represents.  I wish them well in Kazakhstan.

(Photo by Steve Evans at http://flickr.com/photo_zoom.gne?id=9640383&size=m; license details there.)