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:
- 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.)
- 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.
- 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.
- 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.)
