Deliberations

Context Is All: Tapping, Teletubbies, and The Curse of Knowledge

You hold a mock trial in a complex case.  You present your evidence with all possible clarity.  The jurors miss more than half of it.  What happened? 

They're not dumb, and you're not inarticulate.  You just demonstrated a basic principle of communication:  clarity without context is mud.

What did you say, honey?

To grasp this, think about talking to little kids.  Before I had one, I could never figure out what little kids were saying.  I was always asking them to repeat, and then would pretend I got it rather than ask again.  I figured kids just didn't speak clearly.

When my daughter started talking, I realized I had been wrong.  She spoke with perfect clarity.  I always understood her, and suddenly I understood other people's kids as well.  But other childless adults were still baffled.  They still bent forward with blank faces, just as I had done before. 

The gap was revealed:  it wasn't clarity, it was context.  My daughter was saying, perfectly clearly, the names of Tinky Winky, Dipsy, La-La, and Po -- the characters in Teletubbies, the kids' TV show that fascinated her at that time.  The problem was not that she was saying it wrong; it was that her poor adult listener had never heard of Tinky Winky, didn't know there was such a thing as Tinky Winky or the Teletubbies show or that she might be talking about television at all. 

Made To Stick and "the curse of knowledge"

In trial, lawyers are the incomprehensible little kids, and jurors are the baffled adults.  You explain exactly how the defendant pumped up its financial statements by using unreasonable assumptions for the useful life of its equipment in calculating depreciation.  You even try to explain what depreciation is, how it corresponds to familiar concepts, why it's an expense even though no cash changes hands, and so on.  But you've been working on this case for months, and you've spent the last several days talking to hardly anyone but your expert.  You have forgotten how much you know, and how much the jurors don't yet know.  You don't give them enough context. 

In their new book Made To Stick, which has lessons for trial lawyers on almost every page, authors Chip and Dan Heath give this problem a name:  The Curse Of Knowledge.  They describe a 1990 study in which people were asked to "tap out" familiar songs by knocking on a table, and listeners were assigned to try to guess the song.  The tappers thought their listeners would guess right about half the time; in fact, the listeners got only one song right out of every 40.  (The Heaths demonstrated this experiment in an NPR interview last week; they tapped out "The Star Spangled Banner."  I could have sworn it was "Happy Birthday.")  The tappers "are flabbergasted," the Heaths explain, but it's natural:

The problem is that tappers have been given knowledge (the song title) that makes it impossible for them to imagine what it's like to lack that knowledge.  When they're tapping, they can't imagine what it's like for the listeners to hear isolated taps rather than a song.  This is the Curse of Knowledge.  Once we know something, we find it hard to imagine what it was like not to know it.  The knowledge has "cursed" us.  And it becomes difficult for us to share our knowledge with others, because we can't easily re-create our listeners' state of mind.

It's a curse trial lawyers know well.  We're luckier than some, though, because at any given time, we've recently had to learn a lot.  For each new case, we have to learn a new body of knowledge.  The key at trial is remembering what helped you learn that knowledge, so you can pass it on.

(Teletubbies photo by sara at http://www.flickr.com/photo_zoom.gne?id=103466903&size=m)

Juror Dismissed. Quick, Now What?

A feature of every jury trial is the Instant Decision Moment.  These are always stressful, and particularly so when they hit while the jury is out.  During the trial itself, you're making decisions all the time, bouncing and changing direction like a tennis player as new shots come at you.  When the jury goes out to deliberate, you head to the sidelines and put a towel over your head:  done. 

But you're not done, of course.  The jury comes back in with a question or a problem, and you need to react.  Right now.

The art curator goes home

As the Libby-trial-following world knows, prosecutor Patrick Fitzgerald and defense lawyer Ted Wells had an Instant Decision Moment yesterday morning.  A juror -- the art museum curator, the one who didn't wear a Valentine T-shirt -- told the judge that she had "sought information that led her to material about the case over the weekend," says the Washington Post, and so she was dismissed.  The Post says "Fitzgerald appeared disturbed by the development, while Libby and several defense attorneys wore broad smiles at the news of the woman's removal."

Now what?  Eleven jurors are left.  They've been deliberating as a group for more than two days.  Do we put an alternate in to fill the group back out to twelve, or do we let them continue as is?  Counsel?

Liveblogger Jane Hamsher takes over the story, paraphrasing the exchange.  Exactly an hour after court first convened to hear the art curator's communication, it was time to make the call.  One speech from each lawyer, a ruling, and it was over: 

[Judge] Walton:  One juror has now been dismissed based upon the knowledge of her part that she did have information based on this case.  It wasn't intentional, but what she had exposure to disqualifies her from further deliberations of this case, so I need to know what counsel's position is as to how to proceed.

Wells:  It is the position of defense that jury deliberation should continue with a jury of 11 and that at this juncture an alternate should not be put onto the jury, because as we understand it if a new juror is appointed they must start deliberations all over again which is something in our opinion would be prejudicial to Mr. Libby.  That would be a jury of 11.  If we have a situation that for some reason another juror is lost, it is such that we would be left down to 10 and we believe your honor would have the ability to appoint the alternates in, so we're not on the "cliff of a mistrial."  Don't want to throw away 2 1/2 days of deliberations when these jurors are obviously making their way through the charges, and would be highly unfair to Mr. Libby.

Fitz:  The gov't would prefer 12 jurors.  If you're going to replace jurors anew that it's preferable to do it after 2 1/2 days of deliberation.  We think there is a preference for 12 jurors and we think there is a risk that if someone gets ill we get into dangerous territory of 11 jurors.

Walton:  Don't think there is any reason to believe this jury was irresponsible -- info from juror did not taint the others.  They have deliberated for 2 1/2 days, don't want to throw away that work.  If something does unforseeably happen to another juror then we s[t]ill have the option of recalling the alternates.  I did tell them before they left they should continue to not let themselves be exposed to this case from outside sources.  So rather than throw away the 2 1/2 days devoted to this effort, I will allow them to continue their deliberations.

Making the call

Why did the prosecution want to add a juror and the defense not?  Andy McCarthy at the National Review explained why it seemed backward:

Defense lawyers virtually always move for a mistrial when a juror has to be stricken during deliberations.  Reason is obvious:  Jury must be unanimous to convict, and it's tougher for the prosecutor to convince 12 people than 11.

A look through the blogs and news reports, and a little empathy, can help us list at least some of the questions that were swirling in both lawyers' minds in the Instant Decision Moment:

• Do we like the on-deck alternate?  Observers seemed to agree she seemed hostile to Libby.  The National Review's David Schuster described her crossed arms, clenched jaw, and rolled eyes (any one of those would do) when Wells was talking, and said she "relaxed and smiled" in Fitzgerald's rebuttal.
• What's going on with the original eleven?  Thanks to her Valentine's T-shirt boycott, we know the dismissed juror was not, shall we say, in sync with the rest of the group.  It seems very possible she was holding up their progress toward a verdict, but what verdict?  Were they the easy-going, forgiving group that Slate's observer imagined then?  Or is Eric Turkewitz of New York Personal Injury Blog right in wondering whether, "since stubborn jurors are generally good for the defense, [her departure] would be bad for Libby"?
• A new juror means more time deliberating:  who is helped by that?  Firedoglake's Jane Hamsher agreed with a commenter who said it helped Fitzgerald:  "He WANTS them to take their time, because the more they go through the evid[]ence, the less the memory defense holds water."
• What if we lose more jurors?  Surely the alternates are more likely to see a newspaper each day the others deliberate without them.  If one of the eleven gets sick and the alternates have become tainted, we're in mistrial territory, as Andy McCarthy in the National Review points out.
• What does my client think?  What comfort level does he need to have with this decision?
• What about pure numbers?  Twelve is  one more person to convince than eleven.
• What does my opponent want?  If it's the same thing I'm asking for, am I missing something?

Many questions, no clear answers, and minutes to make up your mind:  that's the Instant Decision Moment.  Meanwhile the power went out around 3:00 in parts of the courthouse, and a lawyer on Libby's defense team missed the whole show because she delivered a baby on Friday.  Wow. 

(Photo by Yoshihide Nomura at http://www.flickr.com/photos/yoshimov/67782955/)

The Rare Ruby-Throated Jury Nullification

Jury nullification, like a rare bird, is much discussed among specialists, but hardly ever seen.  Last week brought a sighting -- maybe -- in Los Angeles, and hopes for a much more publicized sighting in the Lewis Libby trial in Washington.

"Jurors nullify when they believe a defendant is actually guilty," explains Prof. Paul Butler in the Fall 2004 issue of Litigation magazine.  (If you're an ABA member, you can read his article here.)  "They do so usually because they think the law is unjust and the prosecution is unfair."  To organizations devoted to preserving individual liberties against government interference, like the Fully Informed Jury Association and the Constitutional Rights Foundation Chicago, jury nullification is a fundamental bulwark of freedom.  To those more concerned with protecting minorities against majority oppression, it is a potential weapon in the hands of a racially motivated jury to convict an innocent minority defendant or acquit a guilty member of their own group.  (The discussion over this issue often centers on Prof. Butler's article "Racially Based Jury Nullification: Black Power in the Criminal Justice System." 105 Yale Law Journal 677-725 (1995), and Clay S. Conrad's book Jury Nullification:  The Evolution of a Doctrine, reviewed here among other places.)

Does it ever happen?

For all that conversation, jury nullification rarely actually happens; and even when we think we might have seen it, we're never sure.  "[T]he empirical evidence about jury nullification is slim," Prof. Butler notes in the Litigation article, largely because we rarely know exactly how jurors reach verdicts.  Jurors who want to acquit a guilty defendant can consciously reject the jury instructions -- or they can decide that witnesses were not credible, or that there were gaps in the proof.  Either way, the verdict is a political statement, but it may not be nullification, strictly defined.

Nullification in the news

The rare bird may have been seen in Los Angeles last week.  A homeless activist named David Busch was charged with a crime called "Trespass - Interfering With Business," because he was using a hotel lobby pay phone, apparently repeatedly.  (I say "apparently" because the article I'm relying on, by the Los Angeles Independent Media Center, is partisan.)  He was acquitted.  The jurors may have found that no business was interfered with, or they may have found that business was interfered with and they didn't care.  Either way, the verdict does sound like a statement against prosecuting the homeless for that which ordinary citizens would be welcome to do.

Meanwhile in Washington, at least some Lewis Libby supporters are wondering whether jury nullification might be the answer for their man.  Conservative WizBangBlog explains the concept to its readers and says Libby's case "seems ripe for its application."  David Frum imagines how the jury's reasoning might go:

If I were sitting on that jury, and heard this summation, I would have only one question: Why am I judging this man Lewis Libby and not Richard Armitage? If disclosing Plame's name was such a monstrous offense, why did Fitzgerald not indict the man who did the deed?

(Photo by Abulic Monkey at http://www.flickr.com/photos/abulic_monkey/134960543/)

Last Week In Other Places

A list of good stuff posted in other places about juries last week:

• Jury news and events of the week are memorably collected every Friday in the National Center for State Courts's  Jur-E Bulletin.  This week's issue is here, and you can subscribe by E-mail here.
• Evan Schaeffer's excellent Illinois Trial Practice Weblog picks up, and interprets for trial lawyers, a recent study showing that people answer questions, even objective factual questions, differently if the same question is phrased differently. 
• Trial Ad Notes neatly pulls the gist of a subscription-only National Law Journal article identifying different types of anti-corporate bias among potential jurors.
• Of the many on-line discussions of the Philip Morris case, the one at Womble Carlyle's South Carolina Appellate Law blog is one of the more relevant to trial lawyers. 
• South Carolina Appellate Law blog also notes the South Carolina Supreme Court's recent affirmance of a trial court's decision to excuse a juror who, asked whether he could apply the death penalty, "took a very big deep [breath] and exhaled as if he were very uncertain as to whether or not he could do that," even though he said he could. 
• Of several candidates, Best Jury Story Of The Week award surely goes to the case where the juror became ill.  That's not so unusual, you say; true.  But this was a medical malpractice lawsuit brought by football coach Charlie Weis, and when the juror collapsed, the two defendant doctors rushed to his aid.  Afterward two jurors said they could no longer be objective toward the newly heroic defendants, and a mistrial was declared.

When Lawyers Cry

You didn't need me to tell you that as of February 2007, it's not safe to cry in court.   But it might be helpful to have a reminder of the heavy price you pay if you let it happen.

You've heard by now that defense lawyer Theodore Wells cried at the end of his closing in the Lewis Libby trial.  "I give him to you.  Give him back to me," he told the jury.  "With that," said the New York Times, "Mr. Wells teared up, sobbed audibly and sat down."

Prosecutor Patrick Fitzgerald had an intense moment too, but it was sarcastic, not sad.  Repeating words Wells had used often in his closing, Fitzgerald shouted, "Madness! Madness! Outrageous!" startling the courtroom.

Different emotions, different reactions

How did these two outbursts play?  If you're willing to treat the flock of writers in the Libby courtroom a little like a shadow jury (that is, statistically unpredictive but still informative), they'll give you an answer.  Fitzgerald's outcry was great; Wells's crying was weird. 

Blogger Pachacutec of Firedoglake and Slate.com was disgusted with Wells,

I can only confirm that it came across as contrived, bizarre, abrupt, as if he found himself at the very end of his time, reminded himself he had to do the crying schtick, and threw it out there almost as an afterthought, half-assed, an unexpected choking as if with overwhelming emotion. 

and riveted by Fitzgerald:

"Madness!  Madness!  Madness!"

When Pat Fitzgerald got up, thundering those words in mock outrage, he grabbed all the energy floating about the courtroom like static electricity, and held it to himself, never to surrender it, save during a brief, late sidebar we'll get to in a minute. This is not a reflection of my personal experience:  this is my observation of what happened all around me. 

I don't quite know how to explain it, other than to say Pat shocked people.  His demeanor throughout the trial had been fairly direct, occasionaly subtly snarky or self deprecating, but he had not once raised his voice. . . until that moment.  It jarred people.  It commanded attention.  Fitzgerald became a one man spontaneous passion machine from that point on.  Yes, there were moments when his voice modulated, but his intensity never wavered.  His command of the details of exhibits, including exhibit numbers, was unmatched by any other attorney in the case:  he rattled them off like the names of his friends. . . . Fitz laid out a long, proper drubbing, and the jury, most of all, hung on every word and breath.

This time it's not bias

Pachacutec is biased and proud of it.  His bio says he "works during fleeting sober moments to build a vibrant progressive movement sufficiently strong and sustainable to drive a pointed stake through the heart of American 'conservatism' forever," and his post on the Libby closings admits cogently the challenge  of being "circumspect enough to know to the way your own biases or idiosyncratic reactions can color your own perceptions"). 

So I thought I'd write an interesting piece on the interplay of bias and presentation -- how bias makes us rate the presentation better or worse, but objectively good or bad presentation decisions help make us biased, a which-came-first-the-chicken-or-the-egg kind of thing.  That piece is out there to be written, but I can't write it about Ted Wells crying.  When I canvased other shadow jurors -- er, bloggers and mainstream journalists -- who saw the closings, they were uniformly derisive.  Some samples:

Dana Milbank in a Washington Post opinion piece said Wells delivered these lines to "the puzzled jurors" and then "sobbed loudly and went back to his chair, where he sat staring at the floor and emitting the occasional sniffle."

Firedoglake "live blogger" Marcy Wheeler, famous in the blogosphere for her near-transcripts, said "Give him back" was "[f]ollowed by an abbreviated choke, a catch of his breath. Without the crescendo, it sounded more like a death rattle than any truly felt emotion. And compared to the real rage Wells had shown earlier in the day, it looked fake. Utterly, completely fake."

I'm sure there was somebody in the courtroom who was moved by Wells's tears, and I'm sure it's posted somewhere on the Internet, but I couldn't find it, and I'm not surprised. 

I may be naive, but I bet the tears weren't fake.  Ted Wells doesn't need me to tell him it's not safe to cry in court.  Crying happens; I cried listening to StoryCorps this morning.  But people expect lawyers, like judges and politicians, to maintain emotional control, and they can be harsh when lawyers cry.

________________

Related notes from the news:

1.  Speaking of shadow jurors, if you're lucky enough to have the budget for them, keep an eye on them.  The really fun blog Trial Ad Notes informs us here about a Washington Court of Appeals decision in which the defendant complained, among other things, that the plaintiffs' shadow jurors ate lunch in the real jury lounge, and one of them asked a real juror about parking validation.  The verdict stood, but it couldn't have been fun for the plaintiff to write that part of the appellate brief.

2.  If you want to start on the Anna Nicole Smith crying-judge story, here's the Washington Post article, and you can follow the delighted blogs out from there.

(Photo by Sean Mason at http://www.flickr.com/photos/smason/131126989/)

David Maister's Profoundly Obvious Jury Story

We've heard the basics a hundred times.  Don't slouch or grimace in front of the jury.  Know where your papers are.  Don't be rude.  Plan your evidence.  Tell the jury where you're going.

Why then do lawyers so often ignore those things?  I wonder sometimes if we don't unconsciously reject each person who tries to tell us.  If the advice comes from a lawyer, a little voice inside us says lawyers don't know what it's like to be a juror.  If the advice comes from a juror, the inner voice says that particular juror was just too dumb to understand us.  By the time we're finished, we've decided no one is qualified to tell us how to talk to juries.

I think I've found a qualified juror.  A juror who's an internationally known authority on lawyers and professional service firms.  A juror whose "seminars and advisory work take him all over the world," who "was named as one of the top 40 influences on contemporary business life in the management book Business Minds."  (All this from a London Daily Telegraph article here.)  Even the most recalcitrant inner voice might shut up and listen to that juror's advice.

David Maister mentioned recently on his blog that he was on jury duty.  I'm not normally the type to write to famous people who have no idea who I am, but this was David Maister on jury duty, so I wrote him asking for details.  Yesterday he wrote a generous follow-up article describing his experience.  I'm quoting it here nearly in full, because the story of the laborer parishioner who had to sue his own pastor to get paid is as good as the advice that comes out of it. 

I’m afraid I don’t have much to say that is profound. The case involved a laborer who was asked by the pastor of his church, he claimed, to perform some basic renovation work on a recently purchased building to make it fit to hold services. There seemed to be no argument that some amount of work was done, but the laborer claimed that all his receipts were stolen (along with his tools) from his truck, and hence could not submit them to the pastor (or the court). We had to decide whether the pastor had promised to pay the laborer, and how much the laborer was owed.

The plaintiff’s case was presented very efficiently by his attorney, supported by testimony from some of the assistants the laborer had hired to help with the work. The lawyer told us what he planned to contend, and called witnesses to back up those specific contentions.

Things started to drag out when the defendant’s attorney took over. As jurors, we were confused as to what it was and what it was not that he was contending. He seemed to taking scattergun potshots at whatever he could think of.

Astoundingly, for a case where less than $80,000 was in dispute, this whole thing dragged on for five days (9am to 1pm).

If there lessons to be learned, they were these:

• If a parishioner is suing the pastor and you want us to believe the pastor, have at least one other parishioner appearing court on the pastor’s side

• Don’t be mean, attacking witnesses as to whether they have ever been arrested, or ever had a drink of alcohol. It backfired.

• If you're trying to make a case, tell us up front what you what you are going to try to prove. We get lost easily.

• If you don’t contest an issue, topic or fact, we the jury are going to assume you concede the point.

• It’s amazing how the lack of organization - fumbling through papers - affected our view of a lawyer's credibility .

• Body language mattered - the defendant slumped and scowled and dozed throughout the plaintiff's case. It turned the jury off

• In post verdict discussions, all the jurors agreed we had formed a strong opinion on the character of the individuals involved within the first 30 minutes of the 5-day trial.

I know this is all obvious stuff, that’s all five days out of my life offered me. What a waste!

It is obvious.  It's profound because we need it anyway.  Lawyers look for tricks to play in jury selection and presentation, and forget about simple respect for jurors' intelligence and their time.  That's why David Maister is far from the only juror to say, in the end, what a waste.

Many thanks to David Maister for writing his description and for allowing me to quote it.

Philip Morris and Practical Problem-Solving

I talked yesterday about jurors and numeracy, and a little on Monday about jurors and literacy.  Today, I had intended to fill out the list and look at problem-solving skills.  What I didn't know was that the Supreme Court would choose yesterday to give jurors a new problem to solve.

The 2003 study I've been discussing this week, by the Organisation for Economic Co-Operation and Development, measured not only literacy and numeracy, but also problem-solving ability.  The researchers didn't ask the problem-solving questions in the United States, but they asked them in five other countries that scored both above and below the U.S. on the other measures.  From almost a quarter of adults in Norway to two thirds in Italy, large proportions of adults in all five countries could make no more than "simple inferences, based on limited information stemming from a familiar context."

That statistic was still in my mind when I read Philip Morris USA v. Williams, issued yesterday.  Philip Morris creates a new rule:  juries may not use punitive damages to punish defendants for harm they have caused to persons who are not parties in the case.  Juries may, however, consider evidence of harm to third parties in deciding whether the defendant's conduct was reprehensible enough to deserve higher punitive damages.  When I start using that many italics, I know I'm not being clear, so here are the Court's words:

Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible . . . Yet for the reasons given above, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties. 

The Oregon Supreme Court had struggled with this distinction, saying, "It is unclear to us how a jury could 'consider' harm to others, yet withhold that consideration from the punishment calculus."  Indeed, said the Supreme Court yesterday, that point

raises a practical problem.  How can we know whether a jury, in taking account of harm caused others under the rubric of reprehensibility, also seeks to punish the defendant for having caused injury to others?  Our answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring.  In particular, we believe that where the risk of that misunderstanding is a significant one -- because, for instance, of the sort of evidence that was introduced at trial orthe kinds of argument the plaintiff made to the jury -- a court, upon request, must protect against that risk.

Yes, it's a practical problem.  The list of American adults who are going to have trouble drawing the line between reprehensibility and direct punishment begins with Justice Stevens, who I'm guessing would have scored fairly high in the OECD problem-solving study.  He wrote in dissent:

This nuance eludes me.  When a jury increases a punitive damages award because injuries to third parties enhanced the reprehensibility of the defendant's conduct, the jury is by definition punishing the defendant -- directly -- for third-party harm.

The list goes on to include the Oregon Supreme Court majority.  Many jurors will miss the distinction as well.  Whatever your take on Philip Morris as constitutional analysis, explaining its rule to jurors will take all the problem-solving skills you have.

Doing The Math On Math

Here's something you may not have in mind in voir dire:  You can't count on math.

The statistics on "numeracy" -- our ability to work with numbers in everyday life -- are stark:

• Roughly a quarter of American adults can perform no more than "simple, one-step operations such as counting, sorting dates, performing simple arithmetic operations or understanding common and simple percents such as 50%." 
• Another third are limited to "one-step or two-step processes and estimations involving whole numbers, benchmark percents and fractions, interpreting simple graphical or spatial representations, and performing simple measurements." 

(All this is from an international 2003 study by the Organisation for Economic Co-Operation and Development. The 333-page report of the study is here.) 

Let's use a little numeracy of our own here.  Picture the jury box.  Pretend it is full of people who perfectly represent the population.  (It never is, but that's another essay.)  Divide the box in half:  front row, back row.  Every single person sitting in in the front row, and likely one in the back row too, will have functional math skills falling somewhere between basic and nonexistent. 

And it matters.  If you watch mock trials, you see math errors tainting verdicts all the time.  More than once I have watched an entire jury reach a damages number they clearly didn't intend, even using a calculator, because nobody knew how to figure out a royalty percentage, or a profit margin.

It's not how many you say, it's how you say how many

Of the many lessons here for lawyers, one was highlighted by a study released this week.  It matters -- a lot -- how you choose to present numerical concepts to jurors. 

In the study, University of Oregon students had to make decisions based on numbers.  Each decision was presented two ways.  When students were told, for example, that a psychiatric patient was to be released into the community, one group was told that similar patients had a 10% chance of committing violence, while a second group was told that for every 100 similar patients, 10 would commit violence.  The second explanation made a much bigger impression, Prof. Ellen Peters explained:

"Low numerate people didn't see as much risk for Mr. Jones' potential for violence if told only that there is a 10 percent chance. We found that when low numerate people were told instead that there was a 10-in-100 chance, they could picture 10 people running around going crazy and realized that Mr. Jones may be one of them."

The researchers got the same results over and over, whether they presented the numbers in different words or different charts.  Students made different decisions depending on how the same data was presented to them.  They responded when words and pictures made the numbers real.

Handwriting Analysis. Seriously.

"Looking for Clues in a Juror's John Hancock." 

That headline in this week's National Law Journal had jury consultants and lawyers buzzing all week.  It's fair to say that a lot of people had trouble taking it seriously. 

The NLJ article (it's subscription only) was serious enough.  It described trial lawyers who hire handwriting analysts to help them in voir dire -- "a significant competitive edge," one called it.  It's like the handwriting analysis you tried to do on your friends in high school:

Handwriting experts say they look for a number of clues in a person's writing, such as the amount of pressure used, the size and angles of the letters and spaces between words. For example, tiny writing may indicate a detail-oriented person interested in facts more than emotions. Leaders may apply a lot of pressure, use big letters and have angles in their writing, experts said.

Does it work?  The Handwriting Analysts Group, an association of associations of graphologists, says it does.  ("You've got questions, we've got answers," their website says, and I bet a lot of people do.)  Nonbelievers categorize it with astrology and palm reading; the Skeptic's Dictionary calls it "another pipe dream of those of those who want a quick and dirty decision making process" -- which does, to be fair, describe the secret wish of any lawyer facing a jury box full of blank faces.   There are empirical studies, of course; here's one concluding there is "limited value in hand-writing analysis as a predictive tool."

What jurors' writing really reveals:  literacy

I think we kind of know instinctively what to do with handwriting in and of itself.  When I see someone's handwriting, I often feel it gives me information about her personality; I'm guessing most people feel that.  We would struggle to explain in words how it works, just as we would struggle to explain how we respond to a human face.  We simply know it's there, and we trust it to an extent.  If you're lucky enough to have written jury questionnaires, and someone's bold or rounded or messy handwriting feels like a clue to you, let it enter into the mix by all means.   

There's another question, though, that juror writing samples can answer, and it has nothing to do with the shape of letters.  How well does this juror read and write?  Fourteen percent of American adults can perform no more than the simplest reading tasks.  Many of them are fairly articulate in conversation -- but when they write a sentence, their disability is clear.  If your case needs jurors who can read easily, written questionnaires may be your only clue that a juror has literacy issues.

Which Way To The Research? Social Science For English Majors

Finding really useful writing about juries is hard.  There is so much material out there that it can take forever to get a confident sense of the area.  That's true with many legal issues as well, but with law, we lawyers are used to piecing unique cases together to deduce a rule.  When we're looking at empirical studies instead of judicial decisions, those of us who took the wrong classes in college can feel lost. 

Choice 1:  One person's opinion

There are two basic kinds of jury writing.  First, there are "how-to" essays by jury consultants, similar to the ones I'm writing here.  Some are extremely helpful (the papers at the DecisionQuest web site, for example, seem to get more interesting all the time), while others stick to familiar maxims.  Many of them, good and bad, share one drawback: they're often one writer's opinion.  That's great if you're looking for ideas, but not helpful if you need to know what the evidence is on jury decisionmaking.

Choice 2:  Science and statistics

Second , there are papers documenting empirical studies.  There are hundreds of these, and they have more citation and data than you'll ever likely want.  The drawbacks, for a nonspecialist, are two: 

1. They're tough going.  You have to work your way through sentences like "A 2 x 3 ANOVA (Training x PTP) with the manipulation-check questions as the dependent variable did not yield any significant results, indicating that participants did not differentially remember PTP among the experimental conditions."  (Shaw and Skolnick, Effects of Prejudicial Pretrial Publicity From Physical and Witness Evidence on Mock Jurors' Decision Making, 34 Journal of Applied Social Psychology 2132 (2004) (available here).   
2. They're often very narrow in scope.  Run "jurors" and "publicity" through the IngentaConnect search engine, for example, and you'll find one study of 50 mock jurors using a real-life fraud fact pattern; another (Shaw and Skolnick above) comparing 55 "trained" and 33 "untrained" college students (mostly women) who watched a videotaped rape trial; and a third by Prof. Vidmar compiling 849 prospective jurors' responses, in real sexual-assault trials, to the judge's question whether they could be unbiased.  Realistically, most lawyers preparing a case, especially the English majors, are not going to try to gather and assess all the studies that bear even on the biggest factors in the trial.

Choice 3:  Literature reviews to the rescue

Where then to go?  Social-science newcomer, I give you a new vocabulary word:  the literature review.   A literature review "is a body of text that aims to review the critical points of knowledge on a particular topic," Wikipedia tells us.  (If Judge Posner likes to cite Wikipedia, then I'm more than willing to cite it too.)  It means that a scholar has read the relevant studies for you, and summarized their results. 

So on the topic of pretrial publicity, you'd look at this literature review by Prof. Vidmar, Case Studies of Pre- and Midtrial Publicity in Criminal and Civil Litigation, 26 Law & Human Behavior 73 (2002).  More broadly, his article The Performance of the American Civil Jury: An Empirical Perspective, 40 Ariz. L. Rev. 849, which I've linked to before, is a valuable ongoing resource.  I also refer often to a paper by Dennis Devine and others, Jury Decision Making:  45 Years of Empirical Research on Deliberating Groups, 7 Psychology, Law, & Public Policy 622 (2000), which is incredibly comprehensive and can be found on line attached to law-school course syllabi if you run the right search.

Where to find it

One more point on this, if you haven't stopped reading by now.  It used to be hard to take even the first steps to find these studies, because they were scattered all over the Web and all over scholarly journals.  Now there are services that gather them.  The one I use most is IngentaConnect, "the home of scholarly research on the Web."  They claim to have over 30,000 sources and 21 million articles, chapters, and so on -- all of it searchable, all of it (I think) abstracted, and much of it available in full text for free.  They should stamp "English majors welcome" across their logo; they're great.

Are You Sleeping, Brother Juror?

We know you didn't get any sleep the night before voir dire.  What about the jurors?

When lawyers think about voir dire, we think about jurors' past history.  Everything we read reminds us that a juror's past experience fundamentally shapes how he will hear and understand what we say.  If you represent an elderly woman who fell and was injured, a juror who cared for his frail mother for twelve years is going to respond differently than will a healthy young man who never knew his grandparents.

Ask about the past, yes, but don't forget the present.  History may help tell us how a juror might connect with your case, but the question whether she can connect at all has a lot more to do with what she did last night, and over the last week.  Consider:

• Fatigue.  Tired people don't think very well.  In a recent study, people who had stayed up all night and then looked at pictures remembered 19% fewer pictures than a well-rested control group did.
• Lack of caffeine.  Many people drink caffeine all day, and then find themselves in a jury box for hours with no coffee in sight.  A 2004 study concluded that "[o]ne of the most profound signs of caffeine withdrawal was impaired behavioral and cognitive performance, although memory was not affected."
• Too long between cigarettes.  In a 2003 study of nicotine withdrawal in pilots, "all tests recorded an impairment of cognitive functions during abstinence," leading the researchers to conclude:  "Abrupt cessation of smoking may be detrimental to flight safety."
• Hangover.  In case you needed a cite for this, researchers in 2003 concluded that "alcohol hangovers have a negative effect on cognitive functions."
• Low blood sugar.  Research has found "significantly more negative" performance on cognitive and emotional tests after blood sugar bottoms out.
• Hormones.  You won't want to hear me say this, but for many women, it matters when you're talking to them.  This study found, for example, that "both short-term and long-term memory for words (30-word learning task) and abstract figures (abstract visual learning task) were mildly impaired in the premenstrual phase."
• Depression.  A survey last week found that one in six Americans and Canadians had been diagnosed with depression -- that's diagnosed, not suffering from.  This study of the elderly found "a significant association between depression and reduced cognitive function."

Some of this you can ask about.  (Not the hormones, I know.)  Is there a baby in the house?  Does anyone work third shift, or two jobs?  Many jurors, when the judge asks what they do, will mention one of their jobs but not the other. 

You can be candid about caffeine and cigarettes:  You'll have to go a long time without them, and for some people that's hard.  Is anyone concerned about that?

Some of it you can't ask, but you'll hear about, if you listen.  A depressed juror, for example,  is likely to give you a few clues.

The rest you'll have to watch for.  This is the kind of thing that "Watch the jury" means:  who is tired?  Am I looking at the face of drugs or alcohol?  Who is distracted, or anxious?  Who just looks out of it?

(Photo by strph at http://www.flickr.com/photos/strph/129221597/)

 

Jurors Care

Many lawyers distrust juries; we know that.  "You can never predict what a jury will do," most lawyers have told a client at one time or another.  Lawyers hit with a bad verdict can be more colorful.  After actor Robert Blake was acquitted for the murder of his wife, the prosecutor publicly called the jurors "incredibly stupid."

Lawyers get angry at jurors not only for disagreeing with them, but also for tuning them out, and for ignoring the jury instructions.  Lawyers tell me that jurors don't care, that they didn't listen, that they had their own agenda, that they just wanted to go home.

I'm sure there are some unreachable jurors out there, but I strongly believe they are very rare.  Jurors care; they care a lot.  They want to do the right thing not only by their own lights, but also under the law they are newly learning.  They are frustrated and even saddened when they can't make out the instructions, or when the special verdict sends them inexorably toward a result that makes them uncomfortable.  But they will follow the law, if we communicate it to them well, even if it causes them pain.

There is research on this, telling us that when jurors don't follow instructions, it's usually the instructions' fault, not the jurors'.  Much of it is collected in Prof. Vidmar's rich article The Performance of the American Civil Jury: An Empirical Perspective, 40 Ariz. L. Rev. 849, beginning at 866 (and p. 18 of the .pdf version I'm linking to).

Sometimes anecdotes make the point better, though.  Look at this blog entry the other day from Mark Rohl, who says he is a 29-year-old Arizona man who works in construction.  This week he was on a jury that had to decide whether to take five children away from their mother.  They had to decide two questions, he said, and were told that if their answer to either was yes, the children had to go to protective care.  They disagreed as to one but agreed on the other "yes."  At the end of the day, he wrote:

Today on valentines day I told a mother that she is "mentally ill" and that she is no longer the parent of her five children. My heart breaks for her, her children, and the remaining family on mothers side. For the last three years she has been fighting this, and in a day its over. I always wounder ed what it was like to sit in on a trail. To hear lawyers do their thing, to hear the bailiff tell all to rise as the jury came in and out of the court room. My broken heart is for her, having her children taken away from her. For me, seeing those with kids not take care of them, but not being able to have any of my own. For me, taking away other peoples kids, but not being able to have any of my own. Ask me to judge a thief, ask me to judge a murderer, ask me to judge a drug dealer, but don't ever ask me to take someones children away ever again. I have always wanted to be a part of a trail, no one said it would be easy, but no one said it would be this hard.

Is That T-Shirt Trying To Tell Me Something?

Years ago I helped try a case where our client had sold his company; the buyer had stiffed him on part of the purchase price.  Our client was tangentially connected to Harley-Davidson, the motorcycle company, although that fact had nothing to do with the case.  On the second or third day of trial, one of the jurors showed up wearing a Harley sweatshirt -- and, we thought, maybe smiling at us.

This is Wisconsin:   lots of people have Harley sweatshirts, and lots of people smile.  Was that all it was, or was there a message in it?  There was nothing we could do about it anyway and there was a lot to do, but we couldn't help wondering.  After a happy result, the jurors met us in the hallway, and she told us that in fact she had chosen the shirt because she was rooting for our side.

I remembered that story this morning, when the New York Times reported that all but one of the jurors in the Lewis Libby trial arrived in court yesterday "wearing bright red T-shirts with a white valentine heart over their clothes, to the uncertain laughter of many in the courtroom."  Apparently without being asked, one of the jurors rose to explain:

The juror said they were wearing the shirts to express their fondness for the judge and the court staff on Valentine’s Day. He then added, to the judge’s growing discomfort, that they were unanimous in this sentiment, but they would all be independent in judging the evidence in the Libby case.

Maybe that's all it was, but you can't stop people from wondering.  Seth Stevenson of Slate.com was in the courtroom:

What to make of this? I think it's good news for Scooter Libby. This has been a tedious case, with lots of little irritating details, and yet the jury is still upbeat. And uncynical. Valentine's Day is the most contrived holiday in the calendar, and the jury seemed ready to press sugared hearts into the palms of strangers. People with this kind of cheeriness could be open to the human side of Scooter Libby—the dedicated if fabulously forgetful fellow portrayed by the defense.

And then what to make of the juror who didn't dress along?   

The one questionable juror is the art curator who in the backward style of old newsmagazines speaks.  She wore no red shirt.

The New York Times says she "apparently declined."  Maybe.  Maybe she just didn't check her messages.

Experts -- Or At Least Jurors -- In The Box

There are the experts on the witness stand, and then there are the experts in the jury box.

In the quest to understand what happens in the jury room, one might easily get lost in a single resource:  the Arizona Jury Project, which I mentioned yesterday.  To gauge the effect of a new rule allowing jurors to discuss evidence as the case went along, Arizona allowed law professors Neil Vidmar of Duke and Shari Diamond of Northwestern to videotape juror discussions in fifty actual trials between 1998 and 2001.  Vidmar and Diamond have been publishing the lessons from the resulting tapes in a series of very good articles.

Relying on each other, not you

Obviously there's a lot of material here, perhaps best absorbed one lesson at a time.  Here's one, chosen because it documents something lawyers often don't anticipate about juries:  they rely heavily on each other's specific life knowledge, treating each other essentially as mini-experts, in their discussions.  In the article Juror Discussions During Civil Trials: A Study Of Arizona's Rule 39(f) Innovation, Vidmar and Diamond detail what exactly jurors talk about behind closed doors.  (While they are focusing on pre-deliberation discussions, their description would be accurate for all of the the mock trial deliberations I've seen.)

Vidmar and Diamond explain that when they get to the substance, jurors' conversation includes both "fact exchanges" and "inference exchanges." (The section I'm working from starts at page 58 in the web version of the paper.)  In "fact exchanges," jurors try to get straight what the evidence showed.  In "inference exchanges," they are clear on the facts, and are discussing instead what they should conclude from it.  In debating these inferences, Vidmar and Diamond tell us, jurors "draw on their own experiences and information," their "personal knowledge of the world," and they seek information from each other in addition to simply saying what they think.  That makes sense, but what I think many lawyers don't expect is how frequent this kind of discussion is.  Vidmar and Diamond talk about juries where up to 61% of the exchanges in which jurors were seeking information were these "inference exchanges."

The point:  you have mini-experts in the box, and the others will look to them for guidance on how to interpret everything from whether a faxed contract is valid to whether a burn injury can take that long to heal.

Changing the subject:  Watch The Jury 101

On the other hand, maybe you should be happy if you simply know that the people in the box are the ones you started with.  It seems that last week, both lawyers and the judge in an Oroville, CA courtroom got through the first ten minutes of the morning's testimony in a firearms case without realizing that one of the people in the jury box was not a member of the panel.  (Apparently one juror was late on the same day a different person showed up mistakenly for jury duty; someone counted heads and put 15 people in the box without calling names.)

It's hard to say how long this would have gone on.  Only when the missing juror called to apologize did anybody realize she wasn't in the courtroom.  Now there's a lesson we didn't know we needed to learn:  if nothing else, at least check to see that the faces are familiar.

(Nametag photo by the queen of subtle at http://www.flickr.com/photos/queen_of_subtle/313134750/)

The Outside Comes In

Two news stories today converge nicely on the topic of whether, behind closed doors, juries obey judges' instructions to stick to the evidence.  First, Newsday writes of three recent cases in which jurors went beyond what they were supposed to -- two by getting outside information, and the third by drinking while they talked.

They're trying

Most juries try hard to stick to the evidence, as several experts consulted for the Newsday article stress.  Studies for the Arizona Jury Project show, the article says, that "jurors scold one another when off-limits information is introduced" -- something anyone who has done more than a few mock trials has seen.  (I think the particular article referred to is Diamond & Vidmar, Jury Room Ruminations on Forbidden Topics, 87 Va. L. Rev. 1857 (2001), although it doesn't focus heavily on the "scolding" phenomenon.)

But watch those cell phones

The Newsday article continued, though, "Nor do experts believe that the advent of the Internet has increased jurors' temptation to cheat.  The same information that can be found on the Internet could be found in the newspapers and on the radio in days past, they said."

Here I'm not so sure; times are changing very, very fast.  That's where the second article comes in.  The New York Times ran the word "Wikipedia" through a case database and found that judges are starting to cite it, often and with humor, for definitions of phrases like "booty music" and "jungle juice."  No less a stickler than Judge Richard Posner of the Seventh Circuit called Wikipedia a "terrific resource," if one to be used cautiously.

If we have suddenly come to a day when Judge Posner is citing Wikipedia, I'm guessing that jurors' comfort with greater and greater Internet access is changing out from under us, too.  They no longer have to leave the jury room to check Wikipedia, and they know it; there's a very strong chance that several of your jurors have accessed the Internet from their cars, or from their seat at the ballgame.

It may take a little more effort now to remind juries to stay within the evidence.  Think about it when you're drafting jury instructions, and consider it as a voir dire question:  Can you get to the Internet from your cell phone?  Do you?  For what?  Can you follow the judge when she tells you not to do that here?

The Role Of The Research

The New York Times has an article this morning that could kill the day for anyone interested in juries:  the headline is "Across the Great Divide: Investigating Links Between Personality and Politics."   The author, Patricia Cohen, discusses recent studies exploring links (and missing links) between personality and political leaning, but she could as easily be talking about likely juror leanings.  The first paragraph perfectly describes how a muddled lawyer feels trying to plan a first voir dire:

Folk music and a collection of feminist poetry may well be dead giveaways that there is a liberal [or a sympathetic juror] in the house. But what about an ironing board or postage stamps or a calendar?

The bottom line is that there is a wealth of research worth tracking down, and that the results are disputed and sometimes ridiculed.

What it's worth, and not worth

For lawyers, there's another bottom line (the bottom bottom line?):  all the research in the world, however sound, cannot definitively tell you what the statistically insignificant sample of people in the box will do -- not as individuals, and definitely not when they are sitting around a table with the exact group of other jurors sharing the box.

So why read it?  Because it will, working together with your own experience, begin to shape and hone your sense of how a juror brings her entire personality to the courtroom and how that personality works as part of a group.  Research like this, and the exercise of deciding whether you agree with it or not, helps shape your intuition -- which, standing in front of that box, is all you have.

The Wasteland

On any given day, a blogger out there is likely to be telling us what jury duty is like, and their stories are remarkably similar.  It's boring.  It's a "quiet and dull day", says a typical post, enlivened only by an ambulance arriving to help someone who had passed out.  There is plenty of time to be thoughtful:

Surrounding are people of all walks of life: old, young, employed, unemployed, etc. Newspapers ruffle from a variety of directions. A cough here and there, a sniffle turn into a small chorus echoing the original sound. 

Plenty of time to wish for escape:  "It appears that the first list [of names read by the clerk] let people leave. Damn, damn."  Mounting resentment:

The rest of the afternoon was spent sitting there listening to interview after interview.  It was horrible.  I fell asleep so many times it's not even funny; and it was so uncomfortable I couldn't even concentrate on the book I had brought.

It's about lunch

What lawyers don't understand is how much jury service is about lunch.  The descriptions of lunch in these entries are far more detailed than the descriptions of the lawyers, whether lunch was bad ("the blandest tasting grilled cheese sandwich ever") or good ("I opted for [Salumi's] porchetta (roast pork stuffed with sausage meat and spices), which was sensational-- especially with the crusty bread slathered in garlicky olive oil.")  And when another juror's blog already centers on her weight-loss journey, it's not surprising that her description of jury duty mentions no lawyers at all, but only what she ate.

Other savvy jurors plan ahead, and post questions about local restaurants, the answers to which (at least a dozen) make you want to head straight for the lunch spots surrounding the Los Angeles Criminal Courts Building.

If you want to be dull, don't explain

One thing we know from mock trials is that jurors take their role seriously and want to perform it well.  So why all this boredom and resentment?

I have to think in part it is connected to another pattern you see in news stories about jury service:  people don't understand why we're asking the questions we do.  A news story today about the Avery jury selection started by explaining why the lawyers might possibly want to ask jurors whether they do puzzles.  The Asbury Park Press in New Jersey argued in an op-ed piece yesterday that asking civil jurors to answer 24 "biographical questions" such as "prospective jurors' favorite television shows and whether they have any bumper stickers on their vehicles — and, if so, what they say" is "inappropriate" and "a waste of everyone's time."

There's room at the top

If jury service is, as we're being told here, an hours-long stretch of unexplained and inexplicable boredom, surely there's an opportunity here.  If the day suddenly changed when you stood up - if you were the lawyer who made the experience make sense, and made jurors see their own role as important, you would have done something powerful - for them, as well as for your case.

There are jurors in the box waiting for you to be interesting.  If you doubt it, read these two recent posts.  Peter, the guy who had porchetta at Salumi, tells us "This was the only part of the trial where jurors got to actively engage with the attorneys. What a blast!"  (I bet the lawyer he was engaging with was good.)  And there is David, a 21-year-old man who journals his life with cerebral palsy:

Because of my low stamina, need for help going to the bathroom, pain with prolonged sitting, inability to handwrite, and need for help with eating, I had valid reasons to get out of serving. What's more, it's always such a hassle to have to prove myself and advocate for myself in a new setting. It was very tempting [to] excuse myself. However, I decided to give it a try because I had heard that jury duty was a good learning experience, and I thought it would be a way for me to contribute.

If David can show up for jury duty, I can darn well try to make it matter.

All this leads to a voir dire question you may not have considered:  "Do you blog?  Tell me about your blog."

Avery Jurors, The News, And The Police

Here in Wisconsin we are watching the Steven Avery trial. For almost five years, Avery has been a local symbol -- first of justice triumphant, then of the possibility of unquenchable evil. In 2003, the Wisconsin Innocence Project freed Avery after he had spent 18 years in prison for a rape that, DNA evidence proved, he did not commit.  Afterward he filed a civil lawsuit against Wisconsin's Manitowoc County, and appeared headed for a life of quiet affluence. Then on Halloween 2005, a beautiful photographer, Teresa Halbach, went to Avery's family's property to photograph a car he was selling. Her charred bones were found in a fire pit on the property. Avery's teenage nephew eventually said that he and Avery had raped, tortured, and killed her; later he recanted that confession. The Milwaukee Journal/Sentinel confidently proclaimed in an article this month that people here experience a fight-or-flight reaction at the sight of Avery’s picture alone.

In court, Avery’s lawyers are asserting an O.J.-like defense, arguing that Avery was framed, and that the Manitowoc sheriff’s department was more than ready to accept the framed evidence because they resented Avery's $36 million lawsuit against the county.

Yesterday, lawyers in the murder trial completed jury selection, and today's Journal/Sentinel article gives us a profile of the 16-person jury they got. Even from the small amount here, two things are striking.

No News

First is the number of jurors who have no use for, and even actively distrust, the news media that have so thoroughly covered Avery’s case. “I have a mute button on my TV that’s getting a real healthy workout,” said a 59-year-old juror. “I don’t really care for news,” said a 41-year-old “retiree/band member.” Another, asked where she gets her news, answered “Not much of anywhere.”

Others went further: “I’ve learned not to always believe what the media says,” said one. Another called the Avery news coverage unfair, saying it was “giving the public the presumption that [Avery is] already guilty.” “I believe the media has found him guilty,” said yet another. “They’re not going to tell me what to think.” Apparently asked what he himself had said to others about the case (a great voir dire question), one juror said he has maintained in conversations with family members that Avery might be not guilty.

Police Distrust

It’s striking too, from the few juror quotes in the article, that at least a few jurors were willing to say they distrust the police. One said of Avery’s early wrongful conviction, “Honestly I thought the Sheriff’s Department bungled the job.” Another, asked whether police would lie under oath, said, “Yeah, because they could get away with it.” Only one is quoted as sticking up for the police in what must have been extensive questioning, saying he thought it was unlikely the police would frame someone because “I really don’t know what they would gain from it.”

Looking at some of these answers, it would be interesting to know more about the jurors the prosecutors struck. It sounds like they weren’t able to strike everyone they would have liked to.

Voir Dire Questions On Memory, And The Lack Of It

The Washington Post reports that  U.S. District Judge Reggie B. Walton asked these questions of potential jurors in the Lewis Libby perjury trial:

--Is there anyone who believes that everyone's memory is like a tape recorder and therefore all individuals are able to remember exactly what they said and were told in the past?

--Is there anyone who feels that a person could not honestly say something about a matter he or she truly believed to be . . . true when that person several months earlier actually said something totally different about that same matter?

--Is there anyone who believes that it is impossible for a person to mistakenly believe that he or she was told something by one person when in fact the person was actually told the information by someone totally different several months earlier?

--Is there anyone who believes that it is absolutely impossible for a person to believe very strongly that he or she has certain memories about something, even though it is determined that those memories are inaccurate?

It's great to see a judge willing to ask questions like this, but I wonder whether this wording was helpful, especially since presumably the lawyers weren't able to follow up.  Surely "Is there anyone who believes that everyone's memory is like a tape recorder?" was met with motionless silence.     And by the time anybody figured out whether it was possible "for a person to mistakenly believe that he or she was told something by one person when in fact the person was actually told the information by someone totally different several months earlier," Judge Walton had to be several questions down the list.