Deliberations

What To Read This Week

The Jury Expert, the publication of the American Society of Trial Consultants, just issued its third edition.  It is, as they say, bigger and better than ever.  There are eleven different articles by leading trial consultants, all offering practical insights for practical lawyers.

The three lead articles are getting the most attention, because they deal with a challenge most of us have struggled with:  preparing a narcissistic witness to testify.  Each of the three authors takes the problem from a different perspective.  Douglas Keene of Keene Trial Consulting is a psychologist, and teaches how to tell what kind of narcissism you're dealing with, and how to respond to it.   Charlotte Morris thinks first in terms of persuasion, and approaches the problem from there.  Lisa DeCaro's background is in theatre and performance, and so she starts with posture, a fundamental and often forgotten form of communication.  Each article is good; together, they're really good.

And there's lots more.  Edward Burkley of Oklahoma State University and his student Darshon Anderson have an article on how scientific studies on persuasion translate to real-life courtrooms.  It's so clear and practical it's hard to believe they're social scientists.  David Illig completes his three-part series on false assumptions in witness preparation, yours and theirs.  There are articles on using technology for clear communication; venue and buffer statutes; how jurors make damages decisions; solution-focused mediation; a very cool new program at DePaul University Law School; and links to two great resources. 

You can download the issue in pieces (the way I've linked to it here), or in one huge file.  Most important, you can subscribe by E-mail, and you really should. 

Petitions To Watch, Jury Edition

Forget "What did we do before the Internet?"  It's enough to ask, "What did we do before SCOTUSblog?"  

We either pored over advance sheets or lived in ignorance, that's what.  Nowadays, thanks to Akin Gump's comprehensive Supreme Court resource, you can easily know not only what the Supreme Court has recently done in your field, but also what it might do this year.

SCOTUSblog posted today a list of "Petitions To Watch," cases that have "a reasonable chance of being granted" at the Supreme Court's upcoming September 29 conference, linking to the opinion below and all the certioriari briefs.  There are important jury cases on the list -- including at least one, Lee v. Louisiana, that will rightly make national news when and if the Supreme Court decides it.  The jury cases are:

Docket: 07-1429
Case name: Lucero v. Texas
Issue: Whether, under the Sixth Amendment, a jury foreman may read Bible passages during deliberations to persuade holdout jurors to impose the death penalty.

• Opinion below (Court of Criminal Appeals of Texas)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Docket:07-1482
Case name: Quarterman v. Mines, Jr.
Issue: Whether, under the federal habeas statute, the jury instructions given at the defendant’s capital murder trial were a clear violation of Penry v. Lynaugh (1989).

• Opinion below (5th Circuit)
• Petition for certiorari
• Brief in opposition

Docket: 07-1523
Case name: Lee v. Louisiana
Issue: Whether the Sixth Amendment, as applied to the states through the Fourteenth Amendment, allows criminal convictions based on non-unanimous jury verdicts.

• Opinion below (Court of Appeal of Louisiana, First Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of Houston Institute for Race and Justice (in support of petitioner)
• Brief amicus curiae of National Association of Criminal Defense Lawyers (in support of petitioner)
• Brief amicus curiae of Louisiana Association of Criminal Defense Lawyers (in support of petitioner)
• Brief amicus curiae of American Bar Association (in support of petitioner)

Docket: 08-94
Case name: Pennsylvania v. Mallory, et al.
Issue: Whether a defendant convicted at a bench trial can prove ineffective assistance of counsel by demonstrating that, absent the lawyer’s actions, he would not have waived his right to a jury trial.

• Opinion below (Supreme Court of Pennsylvania, Eastern District)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

(Photo by Carlos Úbeda at http://flickr.com/photos/clic/2097785942/; license details there.)

If You Can Only Read One Jury Blog,

It might not be this one, now that Professor Sam Sommers has a blog.

Sam Sommers teaches social psychology at Tufts.  His research and writing deals with "race and social perception, judgment and decision-making, diversity and group processes, and psychological perspectives on the U.S. legal system," his blog's "About" page says.  It's not exaggeration to say that his work on juries and race is mandatory for anyone interested in the topic.  You could start with posts here, noting his work on Batson in practice, or on how diversity in a jury makes the whole group better at all aspects of deliberation, including honest discussions on issues of race.

At the end of June, Prof. Sommers started a blog for Psychology Today, called The Science Of  Small Talk.  Look at his post last week, starting with data on the racial composition of juries in Jefferson County, Louisiana, and ending with a blunt criticism of peremptory strikes as they're often used.  Once you've read that, subscribe.

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Thanks to The Situationist, another really good blog, for flagging this.

(Photo by Valerie Everett at http://www.flickr.com/photos/valeriebb/290711738/; license details there.)

"Stop Thinking Like A Lawyer!"

"Most of your most cherished beliefs about juries are wrong."

So begins jury consultant Patricia Steele of Varinsky Associates in her article "To Deal Better With Juries, Stop Thinking Like A Lawyer!"  She should know about lawyers' mistaken assumptions, she explains, because she was a lawyer.  "[A]fter hundreds of hours debriefing actual jurors and watching mock juries deliberate," she says, "I now know that a great deal of [lawyers'] accepted wisdom about jury psychology is completely baseless."

I think she's right, but judge for yourself.  Start in any of these places:

• "Lawyers are skilled at many things,but understanding and connecting to jurors is generally not one of them. This shouldn’t be a surprise when you consider that most lawyers actually have no frame of reference. In the first place, they rarely see juries in action. The vast majority of civil cases settle before trial, and few litigators ever serve on juries or watch mock jurors deliberate. In addition, lawyers typically have little in common, either socially or economically, with the average juror."
• "For generations lawyers have told each other that the jury’s opinion of the lawyer is important to their decision in the case. Trial lawyers think that what they wear and how charming they are influences jurors. They think they can dazzle juries with their eloquence. This is a huge misconception."
• "Another area that’s rife with legal folklore is jury selection. Many lawyers judge prospective jurors using outmoded stereotypes, reflecting an overly simplistic view."
• "A good voir dire is designed to elicit information that helps you to see the jurors as individuals. This sounds obvious, but many lawyers don’t seem to get it. Instead, they use this valuable opportunity to try and educate or condition jurors. This is largely a waste of time."

Don't argue with any of this until you hear her explain why.

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Note:  Patricia's article was first published in Defense Comment, the publication of the Association of Defense Counsel of Northern California and Nevada, and it is made available here by their kind permission and hers.

(Photo by Michael Glasgow at http://flickr.com/photos/glasgows/85752623/; license details there.)

Jury Notes From Elsewhere, June 14

What a week.  We'll remember it more for its non-jury news -- the ringing, historic Boumediene opinion (Gideon here on why it's a great moment, Scott Greenfield here on why it doesn't help actual Guantanemo prisoners that much), the odd, jarring Judge Kozinski news (Volokh here seems to speak for most legal bloggers, but likely not for the general public), Tim Russert's way-too-soon passing today, and here in the Midwest, enough rain to float away an entire lake in central Wisconsin. 

But as Friday ended, the R. Kelly jury in Chicago made it a jury news week too.  They watched a homemade sex tape of a guy they decided was indeed Mr. Kelly with a female who was clearly very young, and 15 witnesses testified that she was a girl they recognized and that she was 14 at the time.  They watched as the prosecution played it over and over.  And they acquitted Kelly -- in large part, Time reports in a juror interview, because the girl herself denied the encounter at first and never testified in the trial.  Josh Levin of Slate watched the trial and couldn't believe it.  "[I]t is possible that the defense team finally succeeded in driving the jurors completely insane," Levin says in a terrific recap of the trial.

And there were as usual good blog posts on juries and trials:

--Elliott Wilcox at Winning Trial Advocacy Techniques is always excellent, this week on why, when, and exactly how to pause when we're speaking to juries. 

--Matthew Homann at The Nonbillable Hour has a tip for good graphics that you'll remember long after you read it. 

--Patrick Lamb, always the gruff, smart teacher, accepts no excuses in litigation budgeting.

--Jury consultants Chris Dominic at Tsongas Litigation Consulting Blog and Edward Schwartz at The Jury Box Blog are both back (as I am) from last weekend's annual meeting of the American Society of Trial Consultants, and they both have new blog posts:  Chris explains why litigators can't be squeamish about technology anymore, and Edward is inspired and inspiring about pro bono trial consulting.

--Evan Schaeffer explains why discovery depositions can rarely be used as substantive evidence in Illinois.

--What About Clients? has some awfully kind words about this blog, but it's Anne Skove at court-o-rama who is quickly and deservedly becoming the most popular Anne in the litigation blogosphere.  Here she announces the recipient of this year's ABA Jury System Impact Award. 

--Juror blog of the week, maybe the year:  Hinda, a feng shui consultant who writes at a blog called the Enerch'i Sisters.   "The Wealth/Power Gua was mostly unoccupied," she explains, "although some of the jury seats and the witness box could have occupied some of the periphery. The judge was located in Fame and Reputation. Partnership was unoccupied. Sitting in Creativity was the judge’s delightful clerk."

--Finally and most movingly, Victoria Pynchon's stunning series of posts about her father's illness at Settle It Now Negotiation Blog ended this week with a memorial to him.  It will be a long time before you see someone confront pain and loss with the courage and perspective that Vickie has, somehow managing to engage with it personally while at the same time seeking a larger lesson.  Vickie, best to you and yours. 

(Photo by Ho John Lee at http://www.flickr.com/photos/hjl/101443399/; license details there.)

Announcing "The Jury Expert"

If you try cases to juries, ideas like these are likely to catch your attention:

• "It is important to recognize that [Baby] Boomers are often traditionalists.  They may use technology happily or begrudgingly, but as a whole they view it as something to augment the old way, not replace it." 
• "Death-qualified jurors are more likely to be racist, sexist, and homophobic.  They are more likely to weigh aggravating circumstances (i.e., arguments for death) more heavily than mitigating circumstances.  Death-qualified jurors are more likely to evaluate ambiguous expert scientific testimony more favorably."  (Each of those sentences cites to at least one research study.)
• "Imagine having the ability to walk into a deposition, hand your iPod to the court reporter, have her download the deposition transcript, hand it to the other side and have them download all their exhibits, then hand it to the videographer and download the deposition video onto it as well." 
• "Witnesses operate under the assumption that if they are intending to be truthful then the truth is what comes out and gets across to the audience.  . . . That assumption is wrong." 
• "Pay attention to three things:  (1) the facts [jurors] use to answer your question, (2) the emotion they use to express themselves, and (3) the intention behind the words." 
• "If your legal pad and seating chart with one-inch squares are no longer cutting it to manage all the information you learn during voir dire, keep reading." 

They all come from the same source:  the debut online edition of The Jury Expert, the bimonthly publication of the American Society of Trial Consultants.  The idea is to offer useful thoughts from respected jury consultants, often and free of charge.  Take a look, and let us know what you think.  (I say "us" because I'm part of the communications committee that cheered as TJE's editor Rita Handrich of Keene Trial Consulting and her team worked very hard and unveiled an impressive product.)  You can subscribe free by E-mail, comment on and rate articles, and download them in .pdf format.

This edition's articles are, and the quotes above are from them in this order:

• "Four Generations in the Jury Box: Tailor Your Message, Make the Connection," by Cam Marston of Generational Insights
• "Caveats of the Death-Qualified Jury: Ways Capital Defense Attorneys Can Use Psycholegal Research to Their Advantage," by Brooke Butler, Ph.D
• "How to Successfully Integrate an iPod into Your Litigation Practice," by David Mykel of Courtroom Sciences, Inc.
• "Witness Preparation: Hidden False Assumptions, Real Truths and Recommendations (Part One)," by David Illig of Litigation Psychology
• "What Do You Hear When You Listen? Five Principles with Tips for Developing Critical Listening Skills," by Diane Wyzga of Lightning Rod Communications
• "Practical Tools for Staying Organized during Voir Dire and Jury Selection," by Kelley Tobin of Tobin Trial Consulting

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Technical note:  My blog platform, TypePad, changed the software bloggers use to compose posts, and at least on this blog, the transition is very rocky.  I hope posts here will start looking pretty again soon.

 

Jury Notes From Elsewhere, May 4

Good things for jury watchers at other sites lately:

--Elliott Wilcox wonders why lawyers say they're speaking "as an officer of the court" when they want to stress they're telling the truth.  What are they telling the rest of the time?

--Evan Schaeffer has six tips for improving direct examination at Illinois Trial Practice Weblog.

--"I'm a bad blogger" is how Eric Turkewitz starts a review of Mark Herrmann's terrific book The Curmudgeon's Guide To Practicing Law. 

--The "How To Be A Great Trial Lawyer" series at John Day's Day On Torts has more installments than "Rocky," and they're all good.  He's up to Part 14, "A Healthy Respect for the Judicial System."

--Everything at Thaddeus Hoffmeister's Juries is relevant, of course, like this post on how juries in Gibraltar acquit local defendants far more often than those from outside Gibraltar.

--Howard Zimmerle at Quad Cities Injury Lawyers has a fresh and often unexpectedly candid perspective, as in this post where he explains how a well-intended and well-spoken lawyer might decide to draft a complaint in legalese.

--Jon Katz finds points of agreement with his political opposite, Antonin Scalia. 

--Karen Franklin announces the guilty verdict in the Hans Reiser case in Oakland, where Reiser was convicted of killing his wife although her body was not found.  A simple technique the prosecutor used in closing, Franklin explains, might have made the difference. 

--Two juror stories made the rounds this week, but they're best told by master storytellers:  Scott Greenfield at Simple Justice tells about the jurors who were sent home for wearing Hell's Angels' regalia, while Seth at QuizLaw tells about the one sent home for showing up drunk.

(Photo by Ho John Lee at http://www.flickr.com/photos/hjl/101443399/; license details there.)

Find Jurors' Experiences At Jury Experiences

I wasn't sure about the Jury Experiences web site early on, but I've become a fan.

"What really happens in jury rooms"

The site itself as evolved as much as my perception of it has.  It was designed as, and still hopes to be, a forum, where jurors would post descriptions of their own jury experiences.  When he started the site back in late 2006, founder Jonathan wrote:

Many of us serve on juries. Our experiences are often both extremely interesting and much different from what we expected. We emerge from our service with stories that we share with our families and friends. However, with the exception of notorious trials, and rare cases in which ex-jurors are interviewed for research purposes, most of these stories are eventually lost. 

The Internet provides an ideal medium for collecting and discussing our experiences. While there are numerous jury-related Web sites and, increasingly, blogs where individuals write about their jury service, few if any of these sites provide an open forum where ex-jurors and other interested people can discuss their experiences and exchange ideas.

Jury Experiences is an attempt to create such a forum. By facilitating discussion about what really happens in jury rooms, court rooms and the jury selection process, in various courts and jurisdictions and especially from the juror's perspective, I hope to contribute to better understanding of our government and legal system by the public and legal specialists alike.

He was right about all that, and even "primed the pump" with a thoughtful description of his own jury experience -- but for the most part, jurors have not yet joined the forum. 

Go for the forum, stay for the news feed

Maybe jurors simply prefer to describe their jury duty on their own blogs, which we know they regularly do.  Because of what Jonathan's quiet forum has become, hundreds of those jury duty posts can be found in one place at Jury Experiences.  As he waited for the jurors to come, he started a news feed, and it's extraordinary.  My own feed settings pick up dozens of juror blog posts a week, but Jury Experiences finds so many more that I've stopped looking for them on my own.  When a colleague and I were researching juror stress for my Japan trip, we found examples of every kind in Jury Experiences' archives.    On top of that, Jonathan gathers regular news stories, usually several a day, about all aspects of juries and jury service. 

There's so little of Jonathan's own voice on the site that it's easy to mistake it for a splog, or worse, a front for the kind of extreme politics that sometimes attaches itself to the idea of the jury.  I'm now convinced it's neither, and it's become a go-to resource when I want to know what jurors -- at least the ones who write on line -- really think.

Jury Notes From Elsewhere, March 28

There's been so much good jury stuff in other blogs lately that I can only go back a few days without making this post way too long.  Here's some of it:

-- Mary Whisner at Trial Ad Notes (it's now Trial Ad (And Other) Notes, with an expanded focus) discusses a paper on the CSI Effect.  The paper actually came out last spring, and both Mary and I wrote about it then, but it's making the rounds again, and worth a look if you missed it the first time.

--Robert Boggs at Washington Trial Law ("the art and craft of trial advocacy") has a great bit of transcript from "My Cousin Vinny."  A trial lawyer can never get too much of "My Cousin Vinny."

--Eric Turkewitz at New York Personal Injury Law Blog, Jonathan Adler at Volokh, and Howard Erichson at Mass Tort Litigation Blog all comment on Adam Liptak's New York Times piece on American punitive damages as they're viewed in other countries.

--Meanwhile when Liptak talked about mistaken convictions and what Justice Scalia thinks of them, Scott Greenfield at Simple Justice was all over it.  The Liptak piece also discussed the new paper "Convicting The Innocent" by Michigan professor Samuel Gross, featured here at The Situationist.

--Thaddeus Hoffmeister's Juries continues strong, as in its continuing coverage of underrepresentation of Latinos on San Diego juries.

--Jeremy Dean's great PsyBlog debunks handwriting analysis, worth reading if you're one of the consultants and lawyers who use it to figure out jurors.   

--Mark Bennett's Defending People has a great new look and a short, solid list of resources on jury nullification.  (Did you, as I did, lose your Defending People subscription when Mark redecorated a few weeks ago?  Resubscribe here, right away.)   

--Capital Defense Weekly has a cool new design too, and a wrap-up of discussion on last week's Snyder v. Louisiana decision from the Supreme Court.  (Juries discusses Snyder here and here.) 

--Which brings us to race.  Colin Miller's Evidence Prof Blog covers the latest in a Pennsylvania case where the jurors are alleged to have used racial slurs "early and often."  And Victoria Pynchon at Settle It Now Negotiation Blog was inspired by Barack Obama's speech on race to a terrific post on legal storytelling. 

--Elliot Wilcox at Winning Trial Advocacy Techniques consistently has the best practical tips, like this one on how to help jurors remember your witnesses.  Best pretrial tip of the week is from Evan Schaeffer, a self-editing checklist to make your writing better. 

--I never thought I could stay on topic and still cite Leo Babauta, whose blogs Zen Habits and Write to Done have taught me a lot about blogging and productivity.  But I can, because he featured a guest post this week called "Research Sources for Writers," and it's a comprehensive guide to finding research -- like jury research -- on the Internet.  The author is Clay Collins of the blog The Growing Life.

All that was posted in the last four days.  Guess I should do this more often.

(Photo by Ho John Lee at http://www.flickr.com/photos/hjl/101443399/; license details there.)

Jury Notes From Elsewhere, March 14

Jury-related writing at other blogs lately:

--Thaddeus Hoffmeister's Juries and Robert Loblaw's Decision of the Day both discuss a new case where the jury used a Bible, a topic that comes up here sometimes too;

--Eric Turkewitz at New York Personal Injury Law Blog considers today's defense verdict in the John Ritter malpractice case, and gets his brother to live-blog a day of New York jury duty;

--Both Gideon and Stephen Gustitis recommend a new article on cross-examining eyewitnesses;

--Peter Henning says goodbye to White Collar Crime Prof Blog, but don't worry; Ellen Podgor will continue;

--Jennifer Lee at the New York Times's City Room blog asks why New York juries rarely impose the death penalty;

--The wonderful Situationist blog, which I don't cite nearly enough because their posts are so complete and detailed they don't leave me anything to say, considers magical thinking; and

--Evan Schaeffer announces the debut of Lean and Mean Litigation Blog (what a great title), by Chicago lawyer Stewart Weltman.

Have a great weekend.

(Photo by Ho John Lee at http://www.flickr.com/photos/hjl/101443399/; license details there.)