Deliberations

A Tale Of Juror Expertise

Here's a quiz.  When you leave a prominent local lawyer, teacher, and legislator (that's all one person) on your jury, are the other jurors likely to:

1. Ignore his views and go their own way?
2. Treat him like any other juror?
3. Ask him questions and look to him for guidance?

Senator Professor Juror, Esq. and Ph.D

"My selection as an actual juror certainly came as a surprise," wrote Robert Martin.  "I had assumed - because I was a state senator, law professor, practicing attorney and father of a local lawyer - that the judge or at least one of the trial lawyers would seek my removal."

You can see why he assumed that.  "Lawyer" only begins to describe why other jurors might defer to Robert Martin.  He's an elected official, a sitting New Jersey state senator, and has been for fourteen years.  He's been a teacher and legal scholar longer than that, a full-time member of Seton Hall Law School's faculty.  His Seton Hall bio says he also has a Ph.D in education.  But he was left on the jury in a slip-and-fall case against ShopRite last year.  He was selected as foreman at random, and the jury awarded $876,000. 

Presumably that would have been that, at least as far as Sen. Prof. Dr. Martin's jury service was concerned, except that he wrote about it.  He published an article in the New Jersey Law Journal last December, describing the experience.  (The article is here; it's subscription only, but there's a 30-day free trial.)

The juror's-eye view

It's a good article.  Martin described, as other jurors have, the fascinating dynamic of a diverse group of strangers trying to decide a case:

Perhaps the most indelible observation is that jurors really do take their obligation seriously. Every juror I encountered tried to do what was right and what was fair. Although some may not have originally wanted to participate, once appointed they accepted their role and performed conscientiously. By being one of them, I gained a much deeper appreciation for their service, sacrifice, and most importantly, sincerity.

He defended the verdict against those who might assume "that someone who happened to fall in a supermarket and proceeded to sue the owner must be a con artist out to make a fast buck."  It came down to credibility, he explained:

What seemed to be overlooked was that, in this case, all six jurors had found the plaintiff highly credible and, conversely, had determined that the defendant had misrepresented the facts after having failed to exercise reasonable care.

He noted too that the jurors' job wasn't made easy.  There was no note-taking, not even on the hour-long oral jury instructions.  There was no coffee in the "coffee breaks."  When the trial was extended for a day, no one asked the jurors about the effect on their schedules. 

Oh, and one other thing

And then he said something that has had the verdict in the newspapers and the appellate courts ever since.  Because of that something, the New Jersey Appellate Division ruled in January (I can't find a copy, even on Westlaw) that the judge needed to "conduct proceedings to explore allegations of jury misconduct."  The same court ruled yesterday that the hearing, in which all the jurors will testify, has to be public.  Here's the paragraph that is causing all the stir:

Over the course of our deliberation I became increasingly aware that other jurors were relying on me for assistance, especially in dealing with abstract legal concepts and procedural issues. For example, I was asked to clarify what the judge meant by "proximate cause" and its significance in proving a negligence claim. I do think my familiarity with the law proved helpful to fellow jurors; but I remain undecided as to whether it's advisable to have a lawyer serve on a jury — especially as its foreman. I am convinced that in our case my opinions swayed other jurors and were extremely influential in the final outcome.

No surprise

Well of course they did.

Of course the others relied on him, and of course his opinions were extremely influential.  Even if the others hadn't been time-pressured, caffeine-starved, and bereft of any notes, they would have relied on him. 

I've only read what I'm citing here, so I can't say whether anything was wrong with this New Jersey verdict.  But as a reminder for the rest of us, the story is timely even if it may be incomplete.  It highlights what may be one of the biggest disconnects between trial lawyers and jury reality:  the role of juror expertise.

The role of juror experts

I've written that mock trials don't predict the outcome of trials, but they're good for a lot of other things, and one of them is understanding how juries work.  You don't have to watch many mock trials to see that one of the strongest forces in the jury room is individual juror expertise:  jurors defer to other jurors' experience and knowledge.  If your trial is about lawn mowers and one juror repairs lawn mowers at the hardware store, you're unlikely to win without his support.  If your trial is about safety in a restaurant and one juror owns a restaurant, you're unlikely to win without her support. 

And if your trial is about law -- that is, if your trial is a trial -- and one juror is a lawyer, you're unlikely to win without the lawyer's support.  If the lawyer is also a community leader, experienced teacher, articulate writer, published author, elected official, and apparently respectful of the group and pretty skilled in understanding what it needs, "extremely influential" is the very least you can expect.

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Update on past posts: 

Richard Glawson, the defendant who got a new jury after he punched a juror in Boston, screwed up his trial again yesterday by threatening to execute the entire new panel.  The news sources don't discuss whether and to what extent mental health is the issue here. 

(Photo by Mai Le at http://www.flickr.com/photos/maile/1745480/; license details there.)

Tip: On Appeal, Bet On Defendants And Bench Trials?

Plaintiphobia.  There's a word to stir up the blogs.

It was coined by Cornell professors Theodore Eisenberg and Kevin Clermont, in a 2002 paper showing that defendants succeed more often than plaintiffs in reversing federal trial court judgments on appeal.  (Personal note:  Kevin Clermont was the first professor to call on me in law school.  Almost thirty years later I'm a little nervous just typing his name.)  Prof. Eisenberg and his Cornell colleague Michael Heise, now both also of Empirical Legal Studies Blog, extend the study to state court data in a new article, "Plaintiphobia in State Court? An Empirical Study of State Court Trials on Appeal."

For winning plaintiffs, "not far from a coin-flip"

Sure enough, defendants succeed more often than plaintiffs in state appeals too.  Eisenberg and Heise explain:

[D]efendants were far more likely than plaintiffs (41.5% versus 21.5%) to successfully reverse an adverse trial outcome. Indeed, from the perspective of a plaintiff victorious at trial, the appeals process offered a chance to retain victory not far from what a coin-flip would predict. For defendants, by contrast, victories at trial were far more secure.

Forget what you've heard about jury verdicts on appeal

The other "loser" in this study is a surprise:  the jury trial itself.  Any trial lawyer can confirm that conventional wisdom, as the authors put it, "typically emphasizes the sanctity of jury verdicts and warns that 'appellate challenges to jury findings rarely succeed.'" But the conventional wisdom isn't true:  in the state court study, bench trials were reversed only 27.5% of the time, while jury verdicts were reversed more than a third of the time.

What's going on here?  Are trial courts favoring plaintiffs and appeals courts simply correcting the imbalance?  Are appellate judges really plaintiphobes, not to mention juryphobes?  Eisenberg and Heise crunched the data every which way, trying to rule out "confounding factors, including the trial court’s behavior, the decision to appeal, and post trial settlement conduct."  They suspect the key factor is "appellate court attitudes and assumptions about trial courts":

Whether the observed higher plaintiff reversal rate flows from trial courts favoring plaintiffs or appeals courts favoring defendants or some combination of both remains unclear. Because appeals court systematic disagreement with trial courts is strongest for jury verdicts favoring plaintiffs combined with aggregate trial court decisions that have not been demonstrated to favor plaintiffs over defendants, the interpretation that appellate court misperceptions about jurors’ bias toward plaintiffs— rather than outright jury bias at trial—is currently the more plausible explanation.

Does it ring true?

From a practitioner's seat at counsel table, a higher reversal rate for jury verdicts makes sense when you think about it.  As the authors suggest, it's far easier for everyone involved to make mistakes in jury trials.  Bench trials have no jury instructions, special verdict, or voir dire to get wrong, for one thing.  For another, judges hearing trials alone are more willing to give us time to get things like an evidentiary foundation right.  And in the calmer atmosphere of a bench trial, we are more likely to remember to protect the record. 

But as Eisenberg and Heise point out, none of that explains why defendants win more appeals than plaintiffs do.  Every case in the end must stand or fall on its own mix of strength and luck, and plaintiffs win plenty of trials and appeals.  But if you read this paper right after the recent one suggesting that juries favor doctors in malpractice cases, you might start to wonder if there really could be such a thing as plaintiphobia.

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The Eisenberg and Heise article is also linked to at TortsProf Blog and Legal Blog Watch.

(Photo by SideLong at http://www.flickr.com/photos/sidelong/305305214/; license details there.)

"Do Juries Deliberate?" A Survey In Seattle

Trial lawyers aren't the only ones who want to know what happens when the jury room door closes.  Some of the most avid jury scholars don't care what the actual verdict is -- but their work is useful to those of us who do care.

A deliberations debate

A lot of people in the courthouse don't know it, but scholars argue about the real role of the jury:  is it a meaningful forum for citizen participation in government, or just one more place where the powerful push the disenfranchised aside?  The scholars at the Jury And Democracy Project at the University of Washington come from many disciplines (law, sociology, communications, political science) to study one aspect of the debate.  What matters to them is the way jury service "can change how citizens think of themselves and their society." 

Most recently, the Jury And Democracy Project attempts to determine "the degree to which everyday juries actually engage in the communication behaviors that constitute meaningful deliberation."  The paper is "Do Juries Deliberate? A Study of Deliberation, Individual Difference, and Group Member Satisfaction at a Municipal Courthouse," by project director John Gastil with Ph.D. candidates Stephanie Burkhalter and Laura Black.  (Thanks to Psychology and Crime News for picking this up.)

"Deliberative rigor, listening, equality, and respect."

The authors questioned 267 actual Seattle jurors, in a two-part survey.  Before they were selected for juries, the jurors answered questions about their attitudes and characteristics:  trust in the jury system, eagerness to serve on a jury, interest in the trial, political knowledge, education, and political self-confidence.  At the end of their service, the jurors answered questions about their jury experience.

The conclusion is a strong endorsement of jury deliberations: 

[T]his study provides clear evidence that jurors do understand their experience as being a largely deliberative one in the strongest sense of that word. . . .  Fewer than 10% of juries had a single member who disagreed with [statements describing the process as containing] deliberative rigor, listening, equality, and respect. . . . [F]ully 98% of participants found that they had adequate opportunities to express their views of the case.

Some surprises

As often happens, some of the most interesting findings of the study were the ones that surprised the researchers: 

• Juries containing a mix of ideological views followed instructions more closely.  "[T]he more [ideologically] diverse juries were actually more likely to scrutinize the judge’s instructions. We take this to indicate that the political diversity on these juries was constructive, likely prompting jurors to consider different interpretations of the law."
• The deliberative process was just as strong when jurors lacked "expertise" in the things that might have improved deliberations -- political knowledge and education.  "The expertise measures predicted higher participation levels but not deliberation, per se."
• When some jurors in the group were "expert" deliberators and others were not, the quality of deliberations actually suffered.  "Within a jury, the net result of having significantly unequal knowledge and confidence levels may be a shared perception that the experts will (and do) run the show."

How do I use this?

There are interesting suggestions here for trial lawyers, especially if your argument requires thought, discussion, and time.  Both in voir dire and in presentation, you can be aware of jurors' political knowledge, education, and viewpoint, and of whether you're talking to a jury that is diverse and balanced by these measures, or one that is one-sided or unequal.  You may find yourself, for example, explicitly asking jurors in closing argument to take advantage of their diversity to allow a full discussion, or to move past the sophistication of a few jurors to be sure all are heard.

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Source notes: 

1. The Jury And Democracy Project lists and links to its various writings here. 
2. There are limits to any study, and the main limit to this one is Seattle itself.  Seattle is an unusually homogeneous and educated community, and the jurors who responded to this survey exceeded even Seattle averages on both counts.  More than 92% of them were white or Asian-American, and fewer than 4% were African-American.  The median educational level was a college degree, and over 40% of the respondents had more education than that. 
3. In addition, Seattle municipal courts use six-person juries.  As the authors point out and as mock trials and other research show, larger groups interact very differently from smaller ones. 
4. Finally, it would seem possible that the survey itself "primed" the respondents to deliberate better than they would have without the pre-deliberation questionnaire.

(Photo by Rick Takagi at http://www.flickr.com/photos/rt425/461046004/; license details there.)

Jury Notes From Elsewhere, May 25

Items for trial lawyers around the web recently:

1.  Voir dire questions from trial lawyer bloggers.  Mark Bennett at Defending People continues his recent series on voir dire this week, with a thoughtful essay on using -- and understanding the answers to -- "scaled" questions:  "On a scale of one to ten, with ten being most important and one being least important, . . . "  These questions can be really helpful, as parents among others know.  (I'm always asking, "On a scale of one to ten, how much does it hurt?")

Meanwhile at Austin Criminal Defense Lawyer, Jamie Spencer describes a voir dire approach he uses in possession cases when the defendant was clearly near whatever she is accused of possessing -- "driving the car where the marijuana was found," "in the house where the cocaine was found" -- but claims she didn't know it was there.   "What this cries out for, is a good common sense example that every venire member can understand immediately," Jamie says, and he has one.  It's a respectful discussion with a juror that makes the defense point clearly.

2.  New legislation in Illinois.  The Illinois legislature passed a bill this week that would allow juries in wrongful death cases to award "damages for grief, sorrow, and mental suffering, to the surviving spouse and next of kin" of the person who died.  Republican opponents complaint that the bill "does nothing but line the pockets of the trial lawyers," the Chicago Sun-Times reports. 

3.  A bravura witness performance.  How often do you have a client who can testify for hours that she repeatedly "crossed the line" into inappropriate and possibly illegal conduct, and finish the day adored by the tribunal and the media?  That's Monica Goodling, whose performance before the House Judiciary Committee on Wednesday is worth study by anyone who wants to understand the complex and powerful ways that good impressions are made. 

"She probably spent hours and hours being grilled by [her lawyer John] Dowd and his associates in mock testimony," muses Above The Law, which has a very good round-up of commentary here. Slate's Dahlia Lithwick and Emily Bazelon look at the gender factor as Goodling worship goes mainstream.  "Nobody seems to want to go there, so we will," they begin, contending that the Justice Department's powerful woman "turned herself back into a little girl" for her testimony, "and it's worth pointing out that the tactic worked brilliantly."

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

Voir Dire Of The Week: People v. Ensz

Just when the day's news on jury trials is starting to seem like one depressing story after another, along comes a great trial.  A trial whose substantive lessons are broadly relevant.  A trial with a compelling story, rich with politics and rage.  A trial whose facts are almost endlessly joke-worthy. 

It's the Colorado dog poop trial, which began and ended this week.

Our story begins

I've never been able to tell dog poop jokes well, so I'll just tell this straight, resisting considerable temptation along the way.  The defendant was Kathleen Ensz, a retired French professor in Greeley, Colorado.  Apparently she had been trying for some time to get her Congresswoman, Marilyn Musgrave, to stop sending her campaign literature.  In May of last year, Prof. Ensz says she got one leaflet too many, and she took action.  She scooped some dog poop from her back yard, put it in the leaflet, and left it in the vestibule of Rep. Musgrave's local office. 

Prof. Ensz was charged with a misdemeanor called "Criminal Use of a Noxious Substance."  "She thought she was expressing her freedom of speech," the deputy district attorney told the Greeley Tribune, but "[a]t the same time she made that message, she committed a crime."  No she didn't, said the jury, which acquitted Prof. Ensz at day's end Wednesday.

News you can use

You wouldn't think a dog poop case could teach you much about other kinds of trials, but it can.  Consider these topics from the Greeley Tribune's article on the seven-hour jury selection:

• Voir dire questions in political cases.  The jurors got a short questionnaire (I'm trying to get a copy), asking good questions about their political attitudes.  Remember, if you ask directly about jurors' attitudes, the answers may or may not be helpful; but if you ask about the behaviors that flow from those attitudes, you're bound to learn something.  The Ensz questionnaire followed that wisdom, asking if jurors "had written any letters or posted online comments about [Musgrove's] campaign," and "whether they have donated any money or put up campaign signs for the 4th District in the past eight years."
• Voir dire questions about icky things.  The Tribune article ends with a list of "Synonyms used for dog excrement in court Tuesday:"  Feces, Doodoo, Doggie doo, Poop, Dog crap.  Clearly the lawyers struggled with a tough issue.  There are words some people don't like to hear, and if you're the one who speaks the word, you're the one they'll dislike for it.  If your trial requires you to say unpleasant words, you need to think about what words you'll use and how you'll carry it off without appearing coarse, on the one hand, or squirmingly apologetic, on the other. 
• Do I smell jury nullification?  (Darn.  I really thought I could do it.)  As I write this, there are no interviews yet with the jurors who acquitted Prof. Ensz, but even before the voir dire was over, at least one dismissed citizen was telling the Tribune that the trial was a waste of time.  "'I just think it's a waste of taxpayer money,' [the potential juror] said in the hallway afterward. 'This is something that kids do as a prank. This is not something I see as worth getting 50 people out of work, four expensive lawyers ... I'm sure it was an imposition, but come on. Get a janitor with a poop scoop and spray the air.'"  (True nullification seems unlikely, since a jury who agreed with this view could have found that the required "intent to interfere with another's use or enjoyment of the . . .  building" was missing.  But it's a bad sign for the prosecution to have made such a poor impression so early.)

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Political note:  It's awkward that Prof. Ensz's trial came on the same day Monica Goodling was testifying before the House Judiciary Committee on the U.S. Attorney firing scandal.  The elected district attorney responsible for the case against Prof. Ensz is also, according to the Tribune, Rep. Musgrave's campaign chairman.  The defense has suggested the prosecution was politically motivated. 

Update:  It looks like the Greeley Tribune has taken down their voir dire article.  Checking on it.

(Photo by dro!d at http://www.flickr.com/photos/lecates/423460439/; license details there.)

The Unanimity Requirement In Real Life

Egyptologists have King Tut's tomb.  Anthropologists have Olduvai Gorge.  Those interested in juries have the Arizona Jury Project.  Like those other troves of information, the Arizona Jury Project's lessons keep coming long after its initial "discovery."  Most recently, the project's data has been compiled to tell us what really happens when juries aren't required to be unanimous.

What changes in the jury room when unanimity isn't required?

It's a perennial question, appearing in thoughtful musings at sites like PrawfsBlawg and in major research projects like the National Center for State Courts's 2002 paper, "Are Hung Juries A Problem?", led by prominent researchers Paula Hannaford-Agor and Valerie Hans.  The ABA addressed the unanimity issue in its 2005 "Principles for Juries and Jury Trials," recommending that “In civil cases, jury decisions should be unanimous wherever feasible.”

The problem has always been that we have more curiosity than data.  "[B]oth scholars and courts have been hampered by a lack of information about how juries deliberate when jurors are permitted to reach nonunanimous verdicts," explain Shari Seidman Diamond, Beth Murphy, and Mary Rose in their new paper, "Revisiting The Unanimity Requirement:  The Behavior Of The Non-Unanimous Civil Jury," in the Northwestern Law Review.  (The cite is 100 Northwestern U. Law Rev. 201-230; SSRN has the abstract, and an unofficial version available for download, here.)  "Until recently," Diamond and her colleagues continue, "all empirical research on non-unanimous jury decisionmaking consisted of laboratory experiments and post-trial juror surveys, conducted almost exclusively on criminal trials."

Real juries, real data

Until the Arizona Jury Project.  Arizona was testing a new rule allowing jurors to discuss the case before deliberations formally began.  To understand the rule's impact, the Arizona Supreme Court allowed Prof. Diamond and Duke professor Neil Vidmar to videotape deliberations in fifty actual civil trials between 1998 and 2001.  The resulting hours of tape showed how the discussion rule worked in practice -- and in the process, illuminated dozens of other facets of real juries and how they work. 

Since it takes only six of eight jurors to reach a civil verdict in Arizona, one of the things the researchers got to watch is how a non-unanimous jury really operates.  That's the issue Diamond, Rose, and Murphy address in the new Northwestern paper.  They watched, and recount, real moments like this:

Juror #6 (foreperson to the bailiff): I have a question, a procedural question. If one juror disagrees with the others, does that person have to stay? We have enough of a consensus for a verdict, but we’re arguing on some points, but there’s one person who didn’t agree with the verdict that we came to a consensus with. Does that person have to stay or can he be excused or do we all have to be here?

[The bailiff confirms that the juror will stay and then leaves the jury room]:

Juror #6 [to Juror #4]: All right, no offense, but we are going to ignore you.

Conclusions

Diamond and her colleagues list these conclusions from the data:

• Non-unanimous juries don't rush to judgment.  "[J]uries generally engage in extensive debate on the issues."

• But holdouts, as might be expected, can lose their voice:  "[J]urors are quite conscious that they need not resolve all of their disagreement to reach a verdict. This awareness in some instances translates into dismissive treatment of minority jurors ('holdouts') who are not required to produce the requisite quorum."

• The disenfranchised holdouts aren't all on the same side:  "We . . . find no evidence that the outvoted holdouts are more likely to favor the plaintiff or the defendant, although the jury’s task is particularly  awkward when the holdout opposes liability and the jury must decide on  damages."

• And the holdouts aren't, as fable would have it, wacky eccentrics we ought to be ignoring:  "Further, we find no evidence that these outvoted holdouts are irrational or eccentric in ways that justify isolating them or failing to seriously  consider their views."

• A unanimous verdict seems to be more satisfying for the jurors themselves:  "[Q]uestionnaire data reveal that both outvoted holdouts and majority jurors are less positive about their juries than jurors who reach unanimous verdicts, giving lower assessments of their jury’s thoroughness and the open-mindedness of their fellow jurors."

Reviewing it all (and extensively reviewing the prior literature), the authors favor unanimity:

[A] slight increase in hung juries and the potential for a longer deliberation may be costs outweighed by the benefits of a tool that can stimulate robust debate and potentially decrease the likelihood of an anomalous verdict.

It matters

However you come out on this, we know the issue matters.  Juan Luna, recently convicted of a mass killing at a fast food restaurant in Illinois, won't be executed for the crime, solely because a single juror last week refused to vote for the death penalty.  The work done by Diamond and her fellow authors contributes not only to scholarship but to our stewardship of the jury system itself. 

(Photo by Kirsty Andrews at http://www.flickr.com/photos/sleep_guitarist/292992375/; license details there)

Update: Mistrial After All

Cancel the first half of today's post, about the judge who wouldn't grant a mistrial after defendant Richard Glawson punched a juror.  After Glawson's lawyer Joseph Griffin filed an emergency petition with the state's high court yesterday, Judge Patrick F. Brady reconsidered, and granted the mistrial after all.  (Yet another update:  "reconsidered" is the wrong word.  The court ordered Judge Brady to interview the jurors, as the court's web site now reflects.)

Judge Brady interviewed the jurors today, "and several said they could not remain [im]partial," reports the Boston Herald, who I'm sure will correct that typo soon.  It's not surprising that they were feeling some bias toward Glawson, after they "tried to run or were trapped trembling and weeping" during the incident.

Glawson told the judge he heard voices commanding him to hit the juror.  As a jury event, it looks like it's over; as a story of how mental health issues challenge the law and the courts, it may continue.

Never Let Your Client Punch A Juror, And Other Lessons From The News

You can learn about juries from careful reading of case law and scholarly sources.  But the newspaper has jury lessons too.

The defendant punched a juror.  Really.

Last week I wrote about U.S. v. Simtob, where a juror complained that the defendant was "eyeballing" him (or her).  The Ninth Circuit sent the case back because the judge hadn't asked the jurors whether the incident would affect their views.  In the post, I wondered whether this rule might not allow enterprising defendants to taint their own juries by behaving badly.

I'm taking the position that defendant Richard Glawson did not read my post before he punched a juror -- an elderly, male juror -- in front of all the other jurors in Boston last week.  (The juror wasn't hurt.)  The trial judge denied a mistrial.  "[The judge] dismissed the juror who was hit," says the AP story, "but says Glawson should not be allowed to benefit from his own disruptive behavior."  Glawson will be shackled for the rest of the trial. 

The judge followed his instincts, but not necessarily the law, at least not if Massachusetts should happen to follow the Simtob case.  It seems unlikely that the un-punched jurors are as open-minded about Glawson's case as they were before they watched him hit their colleague.  The news story doesn't say whether the judge interviewed the other jurors, or even the one who took the punch.  So I'm setting up my Westlaw search to watch what happens to this one. 

Judicial instinct vs. the quiet objection

I was already thinking about judges' instinctive responses to juror bias issues because of People v. Dukes, decided by New York's highest court on May 1.  The trial judge there faced a common situation:  a juror didn't realize she knew the complaining witness until the witness took the stand. 

It wasn't just that she knew him.  The juror told the judge not only that she might have worked with the defendant, but that "although she was unsure, she had some recollection that he was fired for an incident involving a gun."  She insisted she could be fair and wouldn't tell the others, but the judge dismissed the juror, as many judges would have done.  In fact, both counsel often agree to dismiss a juror who knows a witness, especially if the juror knows a memorable fact like that. 

But here, defense counsel objected -- quietly, as I imagine the scene, although maybe not.  Either way, the objection should have kicked the trial court out of habitual response mode and into error prevention mode, but it didn't, and the high court reversed.  You can only dismiss a juror in New York "when it becomes obvious that [she] possesses a state of mind which would prevent the rendering of an impartial verdict," the court said, and the trial judge didn't make that finding. 

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Update:  The judge in the Glawson case granted the mistrial after all. 

(Photo by Bryan Furnace at http://www.flickr.com/photos/bfurnace/226693116/; license details there.)

No Post Today -- But Mark Bennett Has Great Posts On Voir Dire

I'll be out of town and off line on Friday and Monday.  Luckily Mark Bennett has been putting up terrific posts on voir dire this week at his Defending People blog.  Take a look at:

"Group Voir Dire," Sunday

"Group Voir Dire II," Sunday

"Bad Voir Dire / Good Voir Dire," Sunday

"A Prosecutor's Voir Dire: Lessons," Wednesday

"Getting The Jurors' True Feelings," Wednesday

And for all I know maybe more by the time you read this.  If you read them by scrolling through his May archives, you'll get lots of good stuff in between.  I'll be back Tuesday.

Mock Trials For The Wrong Reasons

Most people who sell a product spend their time talking about what it will do.  If you sell cars, you get to tell customers which car fits their family's needs.  If you sell computers, you get to explain which one is best for a gamer, or a photographer. 

Mock trials are different.  When your "product" is an appropriately designed mock trial, conducted with insight and (with luck) no glitches, you spend a surprising amount of time explaining what mock trials don't do. 

Over and over, lawyers and their clients tell me they want a mock trial for one or both of two reasons.  They want to predict how the real jury will decide their case, or they want a demographic profile of the perfect juror.  Over and over, I explain that a mock trial won't do either of those things.

Mock trials don't predict the real outcome

It's obvious that mock trials aren't predictive, if you think about it even briefly.  The list of variables you can't control in a mock trial includes practically every aspect of the exercise:

• The judge, who often will have a huge influence on the real trial, won't be there.
• One legal team will be entirely different and the other probably won't exactly match the real trial.
• While lawyers are typically so competitive that both sides try hard in a mock trial, the incentive for the "opponent" to win is different from the real thing.
• The mock jury usually won't hear (and thus won't like, dislike, or be confused by) live witnesses in the presentation phase of the mock trial. 
• The lawyers will condense their presentation of evidence and documents -- which will almost certainly improve the presentation, but also make it different from a "real" trial.
• The jurors' relationships with each other and group dynamic will be different after a shorter trial.
• The lawyers will learn from the mock trial and alter their "real trial" arguments, and voir dire, accordingly.

Most important, even if you could control for everything else, the real trial will have different jurors.  The groups are too small to ever be statistically predictable.  In our mock trials we usually have three juries, who by definition have all heard exactly the same presentation.  Almost never do all three juries rule for the same party.

Mock trials don't generate demographic profiles

You can certainly gain insight from a mock trial about what aspects of jurors' background might make them react favorably, or unfavorably, to your case.  But pure demographics aren't the magic key people think they are, and even to the extent they're helpful, if anybody tells you that a mock trial will reveal your perfect demographic, I submit that person is mistaken.  Again, you can judge for yourself, even if you never took statistics:

• The mock trial sample is usually too small.  In a Milwaukee mock trial group of 18 or 24 jurors, we'll have only a handful of African-Americans.  Even if they all vote the same way, the group isn't large enough for us to sensibly interpret their vote as representative of African-Americans in the city.  You need many, many more mock jurors before you can begin to draw demographic conclusions.
• More important, the real jury is always too small.  Say you somehow had the budget to hold mock trials including hundreds of jurors, and you decided that 90% of Asian-American women were going to vote your way.  Now you're doing the real voir dire, and sure enough there's an Asian-American woman.  Is she in the 90%, or the 10%?  There's no way a mock trial can tell you.

So why do them? 

If it doesn't predict the outcome and it doesn't automate voir dire, why do I believe that a mock trial is one of the most powerful tools a trial lawyer can use?  Here are some of the reasons:

• Mock trials bring insight, important insight, every time without fail.  You do a mock trial not to see what will happen, but to see what could happen.  Lawyers and especially clients are always shocked to watch juries discuss their case -- mispronouncing names, screwing up the math, reacting with deep emotion, and identifying counterarguments, both sensible and wacky, that the legal team never thought of. 
• Mock trials fill the gaps.  By definition, you don't know what's missing from your case.  If you did, it wouldn't be missing.  Mock jurors will tell you, very clearly and often with great impatience, what you should have included.
• Nothing else intensifies preparation in the same way a mock trial does.  Even before the mock gavel falls, lawyers and clients have to come to grips with their case to present a mock trial in ways they usually haven't before, even if they're really good.  More than once I've seen a lawyer understand (or have myself understood) the real impact of a document or a piece of testimony for the first time in the middle of the night before a mock trial. 
• Mock trials powerfully sift the evidence.  In the months, weeks, and even days before a mock trial, I often see lawyers mired in their exhibit lists, unable to see which of the scores of documents they've listed might perhaps be left out.  When you need to give a short presentation to a roomful of strangers in a couple of days, the ten best documents and four best deposition quotes have a way of standing out from the rest.

I believe in mock trials.  That's why I keep explaining that mock trials don't do what everybody thinks they're supposed to.

(Photo by Amanda Wray at http://www.flickr.com/photos/livinginmonrovia/92991157/; license details there.)

The Overrated Prior Inconsistent Statement

One theme of this blog is that lawyers don't think like jurors.  A new study gives an example:  lawyers' unfounded love of what we call the "prior inconsistent statement."  If today on the witness stand Mr. Smith says he was in Montreal on the day of the critical meeting, but in his deposition he said he was here in Milwaukee, it's enough to make a lawyer puff with glee. 

The Holy Grail

The prior inconsistent statement is the Holy Grail of witness impeachment, the gold nugget lawyers search for.  We spent hours back in trial advocacy class learning how to use it well.  First you tie down the in-court statement until it looks like Gulliver tethered by Lilliputian ropes, with no chance of escape.  ("You're sure?  You're really sure?  No chance of mistake?")  Then you spend some time on the gravity and certainty of the deposition.  ("You were under oath?  Just like today?  You had a chance to correct your answers?  And you didn't?")  Then you slap out the inconsistency and try to keep yourself from bellowing out something like "WERE YOU LYING THEN OR ARE YOU LYING NOW?" 

Finally, you ask the judge to give the jury a "falsus in uno" instruction, one of the few bits of Latin lawyers still know:  falsus in uno, falsus in omnibus, or if the jurors think a witness told one lie, they can choose to disregard her entire testimony.  The instruction isn't given often, but a prior inconsistent statement helps convince the judge it's justified.  If you get one, you make it the centerpiece of your whole closing argument.

To jurors, it's not that simple

But are jurors really going to throw out a witness's testimony because of one inconsistency, or even one lie?  Think about it.  Do you have a co-worker who has lied to you but with whom you still manage to work well?  A family member who has lied to you whom you still love?  Perhaps you yourself might have told a lie once, long ago?  For most of us, the idea of falsus in uno is too simple to be useful in real life.

Jurors are often forgiving and practical when a witness lies.  That's the conclusion of an empirical study by Jones Day lawyer Richard Stuhan, and trial consultants Melissa Gomez and Daniel Wolfe of TrialGraphix, Inc, collecting data from over 800 mock jurors in "over a dozen states."  Stuhan, Gomez, and Wolfe authored an extensive post about their study (and its limitations) at the Drug and Device Law blog, and plan to publish it in full in the April 2007 edition of DRI's For the Defense magazine.  (Update:  the full text of the For The Defense article is at Jones Day's web site.)

Highlights from the post, which should be read in full:

• "[J]urors go into a trial with a generally positive attitude toward witnesses."
• A majority of jurors do tend to believe an inconsistency reveals a lie rather than a mistake, but . . .
• "Only 20% of the jurors said that an inconsistency would lead them to disregard everything the witness said."
• Jurors were receptive to the idea that an inconsistency was caused by stress rather than dishonesty.
• Jurors vary widely in the way they interpret prior inconsistent statements.

The Power Of Priming

It's hard to tell whether the psychological studies on "priming" are more inspiring or scary.  Over and over, researchers show that one person can alter another's behavior by planting suggestions.  The subjects don't know the suggestions affected them; in fact, they don't know they were affected at all. 

Malcolm Gladwell collects some striking examples in his book Blink: 

• In one experiment, Yale's John Bargh gave subjects seemingly random word puzzles, with no apparent point or thread.  Some of the puzzles containing a subtle preponderence of "old" words:  Florida, gray, wrinkle, lonely, bingo.  Walking down the hallway to leave after the exercise, the subjects who had the "old" words walked more slowly.
• The same paper describes an experiment in which, when they finished the word puzzles, subjects were asked to find "the experimenter" to get their next task.  The experimenter was always involved in an interminable conversation with someone else.  Subjects whose word puzzles had scattered words invoking rudeness -- bold, rude, bother, disturb, intrude -- had no trouble interrupting.  But a huge majority of subjects whose puzzles were full of "polite" words -- respect, considerate, appreciate, patiently, courteous -- never interrupted the experimenter's conversation at all. 
• Dutch researchers asked some subjects told to think in detail about becoming a professor, and others to think about soccer hooligans.  In subsequent tests with Trivial Pursuit questions, the ones who imagined professorships got significantly more questions right.
• In another study, Professors Claude Steele and Joshua Aronson gave questions from the GRE exam to black college students.  All the students filled out pretest questionnaires, identical except that some questionnaires required the students to identify their race and some did not.  The students who had to say they were black got half as many questions right on the test as those who did not.  (The links to both of the last two studies are to abstracts, but if you search the titles, you can find them attached to university course syllabi.)   

Priming with questions

A study released last week expands the research on the priming power of another seemingly innocuous tool:  the simple question.  Researchers Gavin Fitzsimons, Joseph Nunes, and Patti Williams already knew that questions have power.  Prior studies have shown that if you ask people about something they feel positively about, they'll do more of it, and if you ask them about something they feel negatively about, they'll do less of it. 

But what, the researchers wondered, about the things we feel ambivalent about?  Take vice.  We know it's bad, but we also think it's fun.  Would questioning "prime" vice, and if so which way? 

Ask about vice, and you get vice

The wrong way, in this study.  It turns out that when college students were asked how often they thought they might skip class, they skipped more.  How often will you drink or watch TV instead of studying?  Whatever the answer, those who heard the question drank and watched TV more, and studied less. 

The researchers acknowledged that the phrasing of the question may have been more important than the fact of it:

[W]e ask[ed] how likely respondents are to engage in the vice behavior, in effect framing the vice behavior as something that will be done . . . . Perhaps another way of framing the question (e.g., How likely are you to avoid the behavior?) might make the negative component of the attitude more accessible and thus be more likely to drive behavior.

Priming at trial

Does any of this matter at trial?  It might matter a lot.  You have two chances to ask your jurors questions:  voir dire, for direct questions, and closing argument, for rhetorical ones.  If you want to give a holdout the strength to stand firm, or you need the jurors to compare the patent claims one by one to your client's product, it can't hurt to help them picture themselves doing that, and to ask them whether they can.

_____________

Source note:

The "questions" paper is "License to Sin: The Liberating Role of Reporting Expectations," in the upcoming Journal of Consumer Research.  The press release is here and the full paper is here. 

(Photo by Karen Stannard at http://www.flickr.com/photos/ridinfast/257994376/; license details there.)

The Limits Of Eye Contact: U.S. v. Simtob

On Friday the Ninth Circuit issued guidance on what to do if a nontestifying defendant creeps out one of the jurors.  The opinion, in U. S. v. Simtob, assigns some daunting homework to the trial judge -- and raises a few interesting "what ifs" for lawyers. 

"I look at everybody"

Halfway through Simtob's two-day trial, one of the jurors told the judge "that Simtob had been “eyeballing” the juror and that the juror felt threatened by that conduct."  The judge tried to correct the situation, outside the jury's presence:

The court then cautioned Simtob that neither he nor anyone else was allowed to intimidate anyone in the courtroom. The court further stated that, upon indication of such conduct in the future, it would take appropriate measures to deal with the situation at that time, and it again emphasized its intolerance of such behavior. When asked if the court’s instructions were clear, Simtob responded that they were, and that he had not looked at anyone in particular. “I look at everybody,” Simtob claimed. The district court did not make any inquiry of the complaining juror regarding the “eyeballing” incident.

The next morning, Simtob's lawyer asked that the allegedly "eyeballed" juror be replaced. The trial judge declined: 

The district court ruled that the jury had been “repeatedly admonished not to make up its mind about any issue,” that it was “absolutely satisfied that the jury ha[d] taken those admonishments appropriately,” and that it saw “no reason to inquire further into th[e] matter . . . .”

The jurors' peace of mind

The Ninth Circuit remanded, with simple reasoning.  "[E]ven indirect coercive contacts that could affect the peace of mind of the jurors" are presumed to be prejudicial in the Ninth Circuit, the court explained.  "That at least one juror’s 'peace of mind' was affected is obvious from the district court’s assertion that the juror claimed that he or she felt threatened by Simtob," the court continued, and since the trial judge didn't ask that juror or the others whether they could be fair, the government could not rebut the presumption. 

Any questions?

Fairly straightforward, but you might have questions.  Like:

1.  Is the trial court really going to bring all the jurors back?  Instead of ordering a new trial, the Ninth Circuit sent the case back to the trial court with an assignment far more easily said than done:

We, therefore, vacate Simtob’s conviction and remand for the district court to recall the complaining juror and to undertake whatever inquiry it deems appropriate — whether through an in camera hearing or otherwise — to determine whether the perceived threat impaired that or any other juror’s ability to act fairly and impartially.  Upon remand, the district court must make findings about possible bias that the affected juror or any other juror may have harbored as a result of the alleged eyeballing incident. If the district court finds no such impairment, it can, of course, reinstate the conviction.

Seriously, we're not kidding, said an accompanying footnote:

We recognize the difficulties in recalling a juror post-verdict, such as memory deficiency, locating the juror, and inconvenience to the juror. We also acknowledge the hesitancy that courts face in “haul[ing] jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences.” United States v. Sun Myung Moon, 718 F.2d 1210, 1234 (2d Cir. 1983). [Simtob probably never thought he'd be thanking Reverend Moon someday.]  Nonetheless, we find that there is a substantial, non-speculative ground that justifies such an action in the instant case to ensure that Simtob’s Sixth Amendment rights have not been violated.

"Difficulties" is hardly the word.  A new trial might be easier.

2.  Can defendants abuse this rule?  If the government argued that the remand had the effect of allowing Simtob to intentionally taint his own jury with "eyeballing," the Ninth Circuit didn't discuss it.  I haven't gone too far into this, but it looks like the decision would survive that argument.  It seems generally true that prosecutor can't comment on, and a jury can't consider, a nontestifying defendant's demeanor, both because it's not evidence and because allowing it would bring us too close to undercutting the defendant's right not to testify.  But the law is mixed, especially when the defendant's conduct is especially bad.  In September 2004 Prof. Peter Tillers, of Tillers on Evidence and Inference, had three very comprehensive posts on different facets of this topic, here, here, and here.

3.  What if the juror hadn't said anything?  For every juror who tells the judge he's bothered by the defendant's demeanor, there are (I'm guessing, but confidently) hundreds who notice it, consider it, are swayed by it, and don't tell anyone but their fellow jurors.  If you're defense counsel and a juror speaks up, you've been given a gift.

Lessons

Two takeaway points, I think:

1.  Be ready.  One thing many lawyers forget to review before trial is the law of Unexpected Events Involving Jurors.  It's worth a section in your trial notebook listing the main reasons you can ask for relief because of some glitch with the jury, and the main case or two you'd cite on each point.  Simtob's lawyer was lucky to have the overnight recess in which to remember to ask for the juror's dismissal; it will be just your luck to have the problem come up in the middle of the day, and you'll have an Instant Decision Moment. 

2.  Watch them.  Jurors who would never tell the judge they were bothered by the defendant might "tell" you, if you watch them well enough.  If you think a juror looks fearful or anxious, you can try to tone your client down, shift your arguments to address the issue, or ask the judge to talk to the juror.  If you don't notice, you can't do any of those things.

_________________

Source note:

Thanks to the Ninth Circuit Blog, published by federal defenders from the Ninth Circuit, for flagging this.  In addition to good case summaries, they have useful links to blogs on other circuits, and other defense blogs.  Simtob's appellate lawyer was Montana federal defender David Ness.

(Photo by Bryan Gosline at http://www.flickr.com/photos/brymo/436090582/; license details there.)

Jury Notes From Elsewhere, May 11

It's been a good two weeks all over the Internet for those interested in juries.  Samples:

1.  Padilla jurors already doubting.  Jose Padilla is on trial in Miami, and they've been picking the jury for weeks.  One fascinating facet of the voir dire was the answer several jurors gave to a good voir dire question:  who they thought was responsible for the 9/11 attacks.  (Since jurors usually won't and often can't confess to bias on voir dire, it's useful to ask them what their take is on a well-known event that's relevant to the case.)  Many of the potential jurors, an AP story reported, gave the surprising answer that they didn't know:

"There are too many ifs, too many things going on," one male juror said. "I don't know the whole story."

The defense lawyers had to be encouraged; an American who thinks there's reasonable doubt about 9/11 is likely to think there is reasonable doubt about a lot of things. 

Jury selection finally finished this week, and Howard Bashman (fresh from his trip to this blog's idyllic lakeside hometown) collects the news stories here.  The lawyers are trading allegations, accusing each other of striking Muslims (the government) and Hispanics (the defense). 

2.  Trial through the defendant's eyes.  A pediatrician who blogs anonymously as Flea has been sued for malpractice, and his blog has become a diary of the trial, which started this week.  Flea's first trial post is bitter (the plaintiff's lawyer gets the name "Carissa Lunt" in this story), candid beyond any thought of work-product privilege, and observant:

The enduring memory of jury-selection day was the quiet. It was kinda like a monastery. For most of the day all, even when the room was full of hot, impatient, discomfited jurors, all that could be heard was the sound of conditioned air rumbling through the ducts in the ceiling.

Eric Turkewitz at New York Personal Injury Law Blog, who engages in occasional debate with Flea over the ethics and philosophy of malpractice  litigation, collects Flea's pretrial posts here, including the one where he meets with his jury consultant, and the one where the consultant helps him practice his testimony on tape.

(Update:  If you're reading this sentence, you're unfortunately too late for at least some of these posts.  Eric reports that Flea's posts on his trial have, not surprisingly, been taken down -- but not yet, for some reason, the two links above.)

3.  Thoughts on race, from baseball.  Insights on unconscious bias keep coming from the world of sports.  At Trial Ad Notes, Mary Whisner notes a survey of opinions on the baseball player Barry Bonds, and considers how the results illuminate jurors' attitudes:

• Who's rooting for Bonds to break Hank Aaron's home run record? Only 28% of whites, but 75% of blacks.
• Who thinks Bonds knowingly took steroids? About 75% of whites, just over a third of blacks.

4.  A resource for beginning lawyers.  In a separate post, Mary flags a terrific mini-book, available in full on line, called "Basic Trial Advocacy," by Indiana professor James Tanford.  He covers the basics of everything from the moment the bailiff says "All rise" to closing argument.  Experienced lawyers might disagree with a few things here ("your opening statement, if you are giving one"), and those who stress a particular technique will say Tanford should have emphasized it more.  But it's a solid, approachable, one-stop place to look for direction, like the nine "Cardinal Rules of Successful Trials" with which the guide begins:

1. Act respectful toward the judge. Stand when he/she enters or leaves the room. Address him/her as "your honor."
2. Be brief.
3. Don't waffle or whine
4. Never underestimate your opponent
5. Wear comfortable clothes, especially shoes. No rule requires men to wear vests or women to wear pumps that make them limp.
6. Bring water and granola bars.
7. Arrive at every court appearance at least 15 minutes early.
8. Be formal and professional at all times.
9. Prepare.

Mary learned about Tanford's guide from a blog called Winning Trial Advocacy Techniques, by Elliott Wilcox.  His tag line is "Revealing the secrets for persuading jurors and winning more jury trials," which is enough to get me to subscribe.

5.  A new study on age and fear.  Dave Munger at Cognitive Daily has a great post examining a new study where older and younger adults were asked to look at pictures of dangerous situations.  "Older adults consistently rated the threat from the high danger pictures significantly lower than younger adults," he explains.  His discussion is thorough, including not only a graph, but a very cute picture of his daughter. 

When you need jurors to assess risk  -- Did the plaintiff act rashly?  Should the defendant have taken greater care?  Was it self-defense? -- it's worth remembering that older jurors may make the assessment differently.

6.  Good advice, folks.  "Put a lawyer in front of a jury and it's only seconds before he'll start using the word 'folks,'" says Evan Schaeffer at Illinois Trial Practice Weblog.  Some of us can get away with it and some can't, as he explains.  I'm definitely a can't.

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

The Traumatized Juror, Part II

I wrote on Monday about people who have experienced, or even been close to, personal trauma, and a new Cornell study showing that they remain sensitive to upsetting stimuli years after the event.  I promised to follow up with some thoughts about what to do when someone who has experienced trauma shows up on your jury panel.

  It's not an idle question.  "More than half the population experiences trauma, which makes people more likely to develop PTSD, depression, anxiety and physical illness later in life," according to the press release for the Cornell study.  That's probably not counting the ordinary traumas of life -- the death of a loved one, the end of a long relationship -- from which we recover eventually, but may be suffering acutely right now.  You will almost certainly have jurors who have had a trauma of some kind, including some whose hurt is very fresh.

The basics

I don't know of specific empirical research on traumatized jurors, although it may be out there.  While I'm looking for it, logic can get us to the most basic steps:

1. First, be kind.  I know you're usually kind.  But on the first morning of the first day of trial, even the kindest lawyer can be too focused and too tired to empathize.  In the moment when you learn that a juror was assaulted, or was badly injured, or lost a child, the first thing you are is sorry -- not just because anything else makes you look like a jerk, but because it's a response you can live with after the trial.  (Empathy in voir dire generally is a good habit for a lot of reasons, and it makes this step much easier.)
2. Understand the impact of your own evidence.  Many trials have disturbing evidence.  (This week in Canada, a male juror passed out when he had to look at autopsy photos of a baby.)  Lawyers need a thick emotional skin to be able to work with this material.  By the time you get to trial, you'll have lost -- at least a little -- your sense of horror at the pictures you need to show the jury and the things you'll need to tell them.  Before talking to any jury, and especially to a traumatized juror, you need to get that sensitivity back. 
3. Respect the power of trauma.  There are helpful ways to think about how trauma might shape a juror's response to your case, and I've noted them below.  The only thing you really know, though, it that it will shape his response, in ways that you can't be sure of and that even he will probably never know.  The distraction alone would change his ability to listen and process, even if the trauma didn't also change his reactions and assumptions.  Emotional trauma has the power make a person physically and mentally ill; be assured it can also skew your verdict.
4. Ask questions wisely and sparingly.  You need a basic sense of what happened to this juror, what changed in his life because it happened, and to what extent he might be unable to serve because of it.  If you're considering a strike for cause, obviously you need to ask some questions on the record. (Think about asking them in chambers rather than in the courtroom).  But if the only issues are whether to strike the juror yourself and how he might respond to your case if you don't, consider how much you already know before you start asking questions.  If his teenaged son died of an illness last year, or he's deep in a custody fight over little kids, you can assume a great deal without asking much more.  There's a chance your assumptions are mistaken -- but there's also a chance that neither he nor the other jurors will forgive your intrusive follow-up questions.

What impact will trauma have?

I can't stress enough that you don't know and there's little or no data.  But there is a thoughtful article on the DecisionQuest web site called "Terrorism and the Civil Jury - The Role Of Ego Trauma in Juror Decision Making."  Between the cautious writing and the thousands of mock trials and juror interviews DecisionQuest has conducted, this article makes sense to me.  It suggests something I've read elsewhere and believe I've seen myself, that trauma seems most often to make jurors identify with victims and want to punish those at fault:

Traditional wisdom in the trial consulting field is that jurors suffering from ego trauma tend to be much more pro-plaintiff than they might otherwise be in the absence of such trauma. . . .  For example, this type of juror may be too forgiving of the plaintiff's own role in causing his injury or mitigating his damage. It is possible such a juror may more easily conclude "somebody" has to compensate this plaintiff, even though the responsibility for the injury rightfully belongs to someone other than the defendant. Or this juror may be feeling "put upon" by society and circumstance, and might feel better by striking out against the system.

Be careful, though, the article says, because it can go the other way:

[O]ur experience with dozens and dozens of sets of post-trial interviews has verified the occasional reverse bias - where the traumatized juror moves into a cynical stage and adopts a jaundiced view of life. Such a juror might actually be bitter and reason, "I've got it much worse than him, what is he complaining about," and shut the plaintiff out on his claims.

Your goal in voir dire, if this is right, is not necessarily to learn the details of the juror's trauma.  Instead, once you identify a particular trauma as a powerful force, you may turn to other facets of the juror's attitude toward fault, victimization, responsibility, and whatever other concepts are critical in your trial -- in hopes of beginning to understand what the role of the trauma will be.

(Image by Rob at http://www.flickr.com/photo_zoom.gne?id=248577019; license details there.)

A Plug For Focus Groups From A Guy Who Doesn't Like Them

Pat Lamb, who blogs at In Search Of Perfect Client Service, spoke compellingly to our litigators a couple of weeks ago, and I noticed he was carrying around a book by Harry Beckwith.  In hopes of becoming more like Pat Lamb (which would improve me considerably), I went out and bought a book by Harry Beckwith too.  I chose Selling The Invisible, because there may be nothing more invisible than some accumulated knowledge and insight about juries.  ("Skeptics still say [that jury consulting] is sorcery science," reported the South Florida Sun-Sentinel on Monday.)

Like any good book about marketing, Beckwith's book is largely about persuasion, and thus directly relevant to trial lawyers.  In fact, he's relevant even when he's explicitly writing for a different reader.  There's a great short essay about focus groups, called "Focus Groups Don't."  It goes:

A typical discussion:

"We need some information."

"OK, let's do a focus group."

It's very tempting to summon focus groups.  For one thing, the term "focus groups" is clever packaging.  A "survey" sounds like something that only gives you the lay of the land.  "Focus group," by contrast, sounds like something that gets you zeroed in.

Or so you would think.

But you are selling individuals, not groups.  Focus groups tell more about group dynamics than about market dynamics.  Control types take over focus group sessions and try to persuade the others.  The wise but shy types sit quietly, waiting for the hour to end.  People's views get changed and distorted by other people's views. 

"You're selling individuals.  Talk to individuals," Beckwith concludes, and he's probably right if you're selling individuals.  But I could hardly have written a stronger argument for why "Focus Groups Do" (focus, that is) if you'll be trying to persuade a group.

Beckwith has perfectly described how juries, and mock juries, work.  Control types do take over.  Wise but shy types do get sidelined.  People's views do get changed and distorted by other people's views.

Which is why mock juries are great.  You haven't traveled until you've seen the places a group can go with your theory of the case.  Find a way to run your case past a group, and then leave them alone with it for awhile, if you possibly can.

_____________

Update:  Scott Greenfield, who blogs on criminal defense at Simple Justice, picks up this post here and runs quite a bit farther with it, pulling in Sociology 101 and the moderating effect of a group moderator.

(Photo by Steve McFarland at http://www.flickr.com/photo_zoom.gne?id=101334755; license details there.)

State Jury Trials: Your Questions Answered

The National Center For State Courts, the people who bring you the spirited weekly newsletter Jur-E Bulletin, were already making vast quantities of solid information about trials and juries available on the Internet -- so the generosity of their latest project isn't surprising. 

The “State-of-the-States Survey of Jury Improvement Efforts," summarized in a press release last week, "is the most comprehensive study of jury policies, operations and practices ever conducted."  The 84-page paper synthesizes three separate efforts: 

• "Documenting jury improvement efforts and the legal infrastructure for jury operations and practices on statewide basis for all 50 states and the District of Columbia;
• "Surveying 1,396 state trial courts about the terms and conditions of jury service in those localities; and 
• "Compiling trial reports submitted by judges and lawyers describing the practices employed in nearly 12,000 jury trials conducted in state and federal courts between 2002 and 2006."

One aspect of the study, its comparison of how long voir dire takes in each of the 50 states, was widely picked up in the press -- especially in the slowest state, Connecticut.  There, individual sequestered voir dire is a constitutional mandate, and so the process takes a median 16 hours, four times as long as runner-up California.  (South Carolina gets it done in half an hour.) 

You've got questions . . .

You can do far more with this study, though, than settle your next bar bet on the land speed record for voir dire.  Any time you are approaching trial in a new jurisdiction, and any time you want to suggest that a judge consider changing a familiar jury practice, this is the place to start. 

Which courts let jurors take notes?  Which ones give them notepads so they can?  (You'd think those questions would have the same answer, but they don't.)  Where do jurors get to ask questions?  Where do lawyers get information about jurors ahead of time?  Which courts give jurors copies of the written instructions?  Which ones read them the instructions before closing?  Which jury practices appear to affect deliberation time? 

If you have a question about local jury practices, it is almost certainly answered here.

(Photo by Tom at http://www.flickr.com/photos/tom1231/254465359/; license details there.)

The Traumatized Juror, Part I

Years ago I had a secretary -- I'll call her Eve here -- who went to the hospital to have a baby at the end of a healthy, happy first pregnancy.  At the last minute there was a cord accident, and the baby died. 

The first weeks after that are not for me to write, but when Eve finally came back to work, she shared some of what life had become for her.  One detail surprised us both.  Every morning, she felt terrified to see her husband leave the house for work.  She was convinced an airplane would fall on him from the sky, and he wouldn't come home.

The broken shell

It made no sense, but it made perfect sense.  Each of us lives in a protective shell -- a necessary, but ultimately mistaken, confidence that bad things probably won't happen to us today.  Eve's shell had been ripped away.  Her baby had died, and she couldn't see what would stop famine, flood, disease, and falling airplanes from coming next.  It was many months before she regained the use of emotions beyond grief and fear.

Eve has two healthy kids now, a happy family.  I've always been grateful that she shared her experience with me.  It taught me not only a deep respect for her, but also a huge respect for the power of trauma in a healthy psyche.  I saw how it moves in for a long stay, and how it causes changes that seem unrelated and strange until you finally see the connection.

This is your brain dealing with trauma

I think of Eve often, most recently when I read about a study announced yesterday, another neuroimaging study.  I can't find the paper itself yet, but the press release, adapted in Science Daily, is detailed. 

In the study, Cornell researchers led by Barbara Ganzel gathered emotionally healthy people, some who had been within a mile and a half of the World Trade Center when it fell on September 11, 2001, and others who had been hundreds of miles away.  They asked all the subjects to look at pictures of people who looked fearful.  (Other neuroimaging studies, the press release says, have shown that our amygdalae, the "fear centers" of the brain, respond to pictures of fearful faces.) 

Brain scans showed that the subjects who had been near the twin towers -- even though three years had passed, and even though they and their family members were not themselves hurt -- were significantly more sensitive and reactive to the fearful pictures.  From the press release:

• "The findings suggest that events that trigger shock, fear and horror that are within a normal range -- may cause similar changes in the brain that traumas do. Victims may experience lingering symptoms (bad dreams, jumpiness, thinking about the incident and avoiding the site of the trauma), but they are not severe."

• "'These people appear to be doing okay, but they may, indeed, be having more sensitive responses to upsetting stimuli,' said Elise Temple, a co-author and assistant professor of human development at Cornell."

Later in the week, I'll post on working with jurors who have experienced trauma.  The Cornell study is forthcoming in the journal Emotion.

(Image by Jon Haynes at http://www.flickr.com/photos/bluhousworker/113906853/; license details there.)

American Gallery of Juror Art Welcomes David Salvia

It's the miracle of Google, that's what it is.  David Salvia's wife Jane was looking for fruit and tree motifs in Tiffany lamps, and somehow she landed in the American Gallery of Juror Art.  (It must have been the post on Christine Buckton Tillman's work.) 

A lot of people would have clicked "back" in exasperation, but Jane instead remembered her husband's intricate jury duty sketches and notes, from a trial in the mid-1990s.

For the sake of legibility on this site, David created a version of the original sketch with the notes in typeset form:

 

Together these are a striking record of a jury deliberating, a bit of an archeological find for people like me.  Why did he make such detailed notes?  He wondered that too, and decided it was the jury itself that pulled his attention:

[A]s I completed my first jury experience, I wanted to document what I considered to be the most compelling part of the experience, and that was my fellow jurors. More so than the actual civil case itself, or the lawyers' performances, it was the surprising and illuminating behavior of the jury that I was most eager to document.

I created the little lists, under which I categorize the jury, so I could better have a framework to understand what I had just been through. As seriously as several of us took the proceedings and our duty, several others were equally disengaged; some entered deliberations completely on the side of the plaintiff, others on the side of the defendant; some seemed open to considering other points of view, and to analyzing their own positions through another lens, while others would not even listen to contrary arguments. It was such a slice of humanity---old, young, white, black, brown, blue collar, professional---and I found the process of throwing us into a room to come to a unified decision simply fascinating.

David now lives in Boston, where he is a graphic designer with the architectural firm Goody Clancy.  He says "I still have the pages of notes I took in the trial, including my sketches of photographic exhibits, which proved helpful during deliberation when other jurors' perceptions of testimony proved to be a little shaky."  It's easy to imagine that the sketches were helpful indeed.

All rights in these drawings and text are reserved to David Salvia.  Many thanks to him for finding this site and allowing them to be shown here.

Another Day, Another Unconscious Bias Study

If you want to watch somebody running on pure instinct, find a pro basketball referee.  There's no time for premeditation.  Stand in the middle of a screaming crowd and ten really big guys are moving really fast and suddenly one of them's on the floor:  make the call now. 

The ref is a great subject for an unconscious bias study, thought Justin Wolfers of Pennsylvania's Wharton School and Joseph Price, a Cornell graduate student.  They must have skipped a lot of real basketball games to collate "all boxscore information from all regular season NBA games played from the 1991-92 season through to the 2003-04 season, yielding over a quarter of a million player-game observations," working to eliminate every variable except race. 

Race matters

Their results are reported in yesterday's New York Times, which has a link (bless you, New York Times) to the full paper.  The referees gave better calls to players of their own race:

We find that players earn up to 4% fewer fouls and score up to 2½% more points on nights in which their race matches that of the refereeing crew. . . . The bias in foul-calling is large enough that the probability of a team winning is noticeably affected by the racial composition of the refereeing crew assigned to the game.

"[E]xplicit animus strikes us as quite unlikely," say Wolfers and Price, and they're right.  It's not possible that NBA referees engineered a secret twelve-year conspiracy to slant their foul calls.  The bias was unconscious; it skewed the decisions and the refs never knew it. 

"A growing consensus"

The NBA disputes the results and is doing its own study.  But scholars in the field aren't remotely surprised, since other research has confirmed unconscious bias again and again.   Times writer Alan Schwarz ran the paper past three of them, including Ian Ayres of Yale Law School, "the author of “Pervasive Prejudice?” and an expert in testing for how subtle racial bias": 

“I would be more surprised if it didn’t exist,” Mr. Ayres said of an implicit association bias in the N.B.A. “There’s a growing consensus that a large proportion of racialized decisions is not driven by any conscious race discrimination, but that it is often just driven by unconscious, or subconscious, attitudes. When you force people to make snap decisions, they often can’t keep themselves from subconsciously treating blacks different than whites, men different from women.”

Not just basketball

"While there are important limits to the external validity of extrapolating from our study of NBA referees," say Wolfers and Price in the paper, there are obvious analogies to other contexts:

For instance, just as referees have to evaluate whether or not a foul occurred, teachers must decide whether a student’s actions are deserving of disciplinary action, customers decide whether or not to trust proprietors, firms decide who to hire, fire or promote, judges decide who to sentence, and officers decide not only who to arrest, but also make split-second judgments as to whether a suspect is reaching  for his gun, or his wallet. The stakes surrounding these decisions are high, and implicit associations may well guide actions beyond the basketball court.

We can add one more similarity:  Jurors decide whom to believe, and who should win.  Most jurors will make these decisions as sincerely and honestly as they possibly can.  When race (or gender, or homosexuality, or any other bias) slants their view, they'll never tell you on voir dire -- because they don't know it themselves. 

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Source note:  Wolfers's and Price's paper has a good bibliography listing other research on unconscious bias. 

(Photo by Doug L. at http://www.flickr.com/photos/77615975@N00/438155193/; license details there.)

Thinking, And Talking, In Segments

We might not ever really get brain scans of our actual jurors, but we can learn plenty from brain scans of other people.  For one thing, neuroimaging tells us that jurors sort information into narrative segments.  We'd be smart to make that job easier for them.

Existing studies show that the brain breaks information in manageable segments the researchers call "narrative events."  When something changes in the narrative, the brain works to "close" the segment it was working on and start reorganizing the next information into a new segment. 

In a study about to be published in the May issue of Psychological Science, Washington University researchers Nicole Speer, Jeffrey Zacks, and Jeremy Reynolds are adding to the evidence on this topic.  The paper is "Human Brain Activity Time-Locked to Narrative Event Boundaries," summarized in Science Daily yesterday and available in full text here. 

Be glad you didn't volunteer for this one

You have to feel for the 28 research subjects hooked up to MRI scanners in this experiment.  "A pillow, washcloths, and tape" -- tape! -- "were used to minimize head movement, and headphones and earplugs were used to minimize noise from the scanner."  They watched a screen where the words of a story, describing a young boy's activities in a typical day in the 1940s, were projected -- "in 52-point, white font on a black background," one word at a time.

The subjects weren't asked to do anything with the story, just watch it, and the scanners recorded their brain activity while they watched.  Then the researchers asked the subjects to go back and divide the story into "events." 

We create "narrative events" without trying

The MRI results showed that when the subjects were watching the text without trying to look for events, their brains were active at the precise points where they later, consciously, drew the dividing lines between events.  That is, their brains were working to divide the story into "event" segments, even when they weren't asked to do that.

What's an event?  A new one starts when the characters, place, or time change, but also when the characters' goals change, they start working with different objects (perhaps playing with a ball or reading a book, in the case of the boy in the story), or new causal relationships are revealed.  When we hit an event "boundary," our brains go to work:

As incoming information about the current event becomes less consistent with the current mental model, readers are more likely to update the current model to more accurately represent the state of the world.

What does it mean?

Trial lawyers already know it's best to present information as a narrative, so what does this research add?  Two things, it seems to me.  First, when you are presenting narrative, you can go with jurors' flow, using clear transitions to break the information into the same kind of segments they will.  If you break where they don't, and don't where they do, they'll be working behind the scenes to reorganize.  The study doesn't say so, but it seems logical and familiar to conclude that if you save them that work, they'll hear more of what you say.

Second, you can't always present in narrative form.  For one thing, a single story usually needs to come out through several witnesses.  For another, some information needs to come out in categories -- lists, charts, whatever.  A profit-and-loss statement, for example, contains little mini-stories (how come Hollinger sent Conrad Black to Bora Bora?), but in the end it's organized by accounting lines.  When you can't tell a story, this research suggests you'd be wise to communicate with extra clarity the organizational structure that best works for your information, since the listeners' brains won't be providing it naturally.

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Language note:  if you're into neuroimaging, you'll especially love this paper.  It has sentences like "An additional T2-weighted fast turbo spin-echo scan acquired structural data in the same planes as the functional scans, in order to facilitate the mapping between the functional and structural data."  Great stuff.

(Photo by Andrew at http://www.flickr.com/photos/polandeze/423230640/; license details there.)

The Stars Come Out In Voir Dire

Celebrities turn up for jury duty a lot more than you might think.  Just in the few months since I've been writing here, we've had at least Kirstie Alley, Valerie Bertinelli (who's doing commercials now with Kirstie Alley -- what are the odds?), Geraldine Ferraro, Steven Soderbergh, and of course Jennifer Lopez, whose picture has been one of the most popular outgoing clicks on this staid legal blog.

Usually they wait with the rest and are quickly excused, but sometimes there's a good story to go with it.  This one is from the Miami Herald on Sunday:

Senior U.S. District Judge James Lawrence King, overseeing jury selection for a civil trial at the Key West courthouse, asked prospective jurors if anyone had cause to be excused.

Three hands shot up. A lady said she cared for her disabled brother. Excused, King said. A man explained he had a job-related issue. Excused, too.

A third fellow stepped forward and said his name was James Johnson. He knew the importance of jury duty, he said, but he had a special houseguest and, please, if he wasn't really needed, could he be excused?

Besides, he said, he'd been a defendant in a few minor civil suits, so maybe the lawyers wouldn't want him anyway.

'I said, `What's your business?' '' King recalls. Fox Sports analyst, he said.

King looked at him funny. ''Did you coach?'' ``Yes.''

''Where?'' King asked.

Miami Dolphins, Dallas Cowboys, University of Miami, Oklahoma State. He rattled off others -- Iowa State, Wichita State.

''That's enough,'' said King as folks in the courtroom laughed. By then, the judge realized it was Jimmy Johnson.

If there's a lesson in this beyond the fun, it's about awareness and flexibility in voir dire.  You're going to be focused, and focus is good, but don't be so focused that you don't recognize Jimmy Johnson.

(Drawing posted by Lorena Suarez at http://www.flickr.com/photos/loresui/16518954/; license details there.)