Deliberations

American Gallery Of Juror Art Welcomes James Mundie

If you're a portrait artist like James Mundie, jury duty is a great place to draw, because people hold still for so long.

James Mundie is a draughtman, printmaker and photographer living in Philadelphia where he says he gets called for jury duty "with surprising frequency." This time Mundie was determined to spend the time productively, so he showed up with sketchbook at hand. When they finally let him go, he headed to a local pub for lunch:

"I draw constantly," Mundie wrote to me, "but I'm trying to be more disciplined about making a regular practice of using my sketchbook. Sketching helps keep my drawing skills honed, but also loosens me up and helps me to become more efficient in describing form. Just the act of drawing something -- really observing it --- helps me to focus and relax. It's like meditation."

James Mundie's work seems to map the path from here to fantasy. On his web site mundieart.com, there are intricate drawings and prints; some are the ordinary faces around us, and others are the creatures and scenes of dreams. At another site called Prodigies, Mundie displays his "portraits of 'anomalous humans' -- sometimes called 'monstrosities' or 'freaks' -- in contexts borrowed from artworks of centuries past." At first you think these are historical drawings, and realizing that they're not pulls you in to what Mundie has drawn and your own reactions to it. "It is my hope that these images compel the viewer to linger and consider their own inhibitions and conceptions in relation to a subject which many consider taboo," he says.

If that weren't enough, the black and white photographs in Mundie's Flickr photostream are full of a sense of light and scene, like the photo he took from that same seat in the pub after jury duty.

The American Gallery of Juror Art is proud to welcome James Mundie. All rights in these drawings are his; thanks to him for allowing them to be reprinted here.

What I (As It Turns Out) Read

I use Google Reader to gather my news feeds and searches, but I'd never clicked the page called "Trends" until this morning. There, lined up in neat lists, were the names of the feeds whose stories I most often click through to read, mark with a star, or share in Deliberations' "In The News" section.

On another day or for a different blogger, this might have been a creepy Big Brother moment. But my feeds are pretty tame (The Onion marks the outer edge), and the "winning" feeds surprised me. Whatever it is I think I'm reading, the feeds I use most are two sites that distribute press releases on new scientific research, Science Daily and Eureka Alert.

It wasn't close. Hands down, my most frequently read, starred, and shared stories are from Science Daily and Eureka Alert. That's partly because they're the most frequently received; I get on average 36.8 stories a day from Science Daily, reports my Trends page. But it's also because the stories that deal with social science are often directly relevant to jurors and juries. Recent examples:

• "The Science Of Collective Decision-making," a story on "the first empirical investigation" of something called "the doctrinal paradox." This occurs, the press release explains, "when judges, say a hiring committee or a jury, must evaluate several factors about a candidate, (e.g. a possible employee or a defendant in a trial) and come to a majority decision. When different opinions arise, the way they conduct the majority vote can be more important than the opinions themselves." That is, if a crime has several elements, the outcome may turn on whether the group votes on each one separately or holds one vote on whether all the elements are met.
• "Why Few People Are Devoid Of Racial Bias," on a study suggesting that the unbiased people (at least the few the researchers were able to find) were slower to form new negative associations of any kind than biased people. The press release suggests that if we're to fight prejudice, we can't just ask people to be fair; we have to show them why they should leave their bias behind. (The press release actually phrases it as "such change may require reconditioning of the negative associations that people hold," but that was my take.)

You can limit your Science Daily stories to a single category, like "Mind & Brain," but I get the entire feed, and it's great. In a single day I can see stories like "Two Giant Steps In Advancement Of Quantum Computing Achieved," "Early Humans Walked, But Couldn't Run," and "Whale And Dolphin Sonar Evolution Studied." It only takes a second to scroll through these on Google Reader, a small price to momentarily expand a lawyer's world.

(Photo by Emily at http://www.flickr.com/photos/19908525@N00/367598336/; license details there.)

Jury Trials For Everyone

Continuing on the theme of law professors with bold ideas about juries, Prof. Suja Thomas is back.

Prof. Thomas's article "Why Summary Judgment Is Unconstitutional" caught a lot of people's attention last spring. I wrote about it here, starting with "Say what?" She was serious, though. Summary judgment, the familiar workhorse of the civil justice system, is unconstitutional in Prof. Thomas's view because it allows judges to draw inferences from the uncontested facts, a job she believes can be done only by juries under the Seventh Amendment.

In fact, now that the Supreme Court has decided two cases dealing with a different procedural tool -- the motion to dismiss -- Prof. Thomas will take it a step further. Her new paper is "Why the Motion to Dismiss is Now Unconstitutional," at SSRN here, and noted here last month at Lawrence Solum's Legal Theory Blog.

Civil motion practice in a really small nutshell

If you've never filed a motion in a civil case (or just didn't keep up with Twombly and Tellabs last term), stay with me for a second, because this will sound mundane, but it matters.

There are three ways to end a civil lawsuit. You can settle the case; you can have a trial; or you can win the case on a pretrial motion decided by the judge alone. There are two kinds of motions that can end a lawsuit before trial: the motion to dismiss, and the motion for summary judgment. The difference is what the judge can look at when she is deciding the motion. In a motion to dismiss, the judge decides whether the plaintiff's complaint, standing alone, contains allegations that amount to a legal claim. In a motion for summary judgment, the party bringing the motion can submit other facts it believes are uncontested, and the judge has to decide whether those facts are really uncontested and, if they are, whether the law clearly says that one side or the other should win.

For decades, the established rule was that in deciding a motion to dismiss, the trial judge had to accept even the wildest allegations in the complaint as true. In two cases decided earlier this year, the Supreme Court changed that. In Bell Atlantic Corp. v. Twombly, the court said that a judge should dismiss a complaint that fails to allege "enough facts to state a claim to relief that is plausible on its face." The idea that judges can decide what was "plausible" at this early stage of a lawsuit is new, and Twombly sounds like they can decide not only whether the legal claim is plausible, but whether the facts alleged are plausible.

The Court went even beyond "plausible" in the second case, Tellabs, Inc. v. Makor Issues & Rights, Ltd. That was a securities lawsuit, so the precise claim the plaintiffs were making wouldn't exist if Congress hadn't created it. The Court said that since Congress created the claim, Congress could make the rules on when and how a judge should dismiss it. The Court said that the complaint could survive a motion to dismiss only if the judge could make an inference -- that's the key word -- from the complaint's allegations that is "more than merely plausible or reasonable -- it must be cogent and at least as compelling as any opposing inference."

Still with me?

No inferences, period.

Prof. Thomas believes trial judges have no business interpreting the facts in civil cases, whether you call it making inferences, deciding what's plausible, or anything else. (I'm putting her most of text in footnotes to make this easier to read; that's in Note 1.) She acknowledges that it seems reasonable to say that if Congress created the claim, Congress can let judges dismiss it (Note 2) -- but that reasonable assumption is wrong, she says, parsing the Seventh Amendment (Note 3).

In short, she says, when Congress sends a new legal claim out into the world, it's gone. The only people who can reject or interpret the facts in a plaintiff's complaint made under that new claim are jurors (Note 4).

So how would this work? The plaintiff gets a jury, Prof. Thomas argues, if the improbable inferences you can draw from the complaint amount to a claim:

I propose that in reviewing a complaint upon a motion to dismiss, a court should accept as true all of the facts that the plaintiff has pled and should draw all inferences, whether probable or not, in favor of the plaintiff. If those facts and resulting inferences do not give rise to a cause of action, then the court should dismiss the complaint. If those facts and resulting inferences, on the other hand, give rise to a cause of action, then the complaint should not be dismissed.

The view from down here

I have to say, that's a problem. I recognize that in some ways, Prof. Thomas is only arguing for something trial courts have been doing for years, allowing shaky and abusive lawsuits -- or creative and bold lawsuits, depending on your point of view -- to build steam through expensive discovery and even more expensive jury trial before they finally end.

But I've had to defend abusive lawsuits, and to explain to clients why they have to fly me and their witnesses all over the country and pay thousands of dollars in expert and transcript fees to defend a lawsuit that, from the plaintiff's point of view, is an enjoyable hobby and exhilarating risk investment. From where I sit, it makes sense to find ways to end some lawsuits early.

And while I'm not remotely a constitutional scholar, it doesn't seem to me that we've chosen practicality over constitutional purity if we build some exit ramps into civil procedure. Under any interpretation of the Seventh Amendment, you get a jury only if you have a legal claim. I may be unhappy that Apple's not sharing its iPhone profits with me, but I can't ask a jury to give me the money, because I have no claim to it. As I read Prof. Thomas's two papers, though, if I file a complaint saying I found all the plans for the iPhone in a neighborhood dumpster and Apple stole them, Apple is in for the long haul. They can't get the complaint dismissed (it's only improbable that I found the plans), and they can't get out on summary judgment. They either fund a jury trial (probably in Milwaukee in winter), or they pay me off.

That can't be the right result, so we must have to draw a line somewhere. And if the constitution allows a line to be drawn, then we ought to be able to consider practicality when we draw it.

Box-free thinking

I still like Prof. Thomas's paper, though, and Prof. Dooley's national juries proposal too, for the sheer magnitude of their proposals. This isn't thinking outside the box; it's thinking as if there were no box, never was a box, boxes don't exist. As the jury system endures threats from all sides, we need more of that.

_____________

Notes

1. "Whether the Supreme Court realizes it or not, it is on the road to the creation of a new theory on the interpretation of the Seventh Amendment – one that eliminates the common law analysis, thus disregarding the constitutional limit on courts’ and Congress’s power over the jury."
2. "The Court’s reasoning that Congress and the rule-makers should be able to establish pleading standards, whether heightened or not, which may ultimately extinguish the jury trial right, for causes of action created by Congress appears logical in the first instance. It seems reasonable that if Congress has created a cause of action, Congress and the rule-makers should be able to decide when a court can eliminate that cause of action."
3. "The first clause refers to the preservation of the jury trial with no exception that permits that right from being interfered with, including by Congress and the courts. Instead the common law explicitly governs when there is a jury trial. Under the second clause, the common law also governs when facts can be re-examined."
4. "Although the jury trial right might result from congressional action that establishes a particular cause of action with a legal remedy, once that right exists under the Seventh Amendment, the right is governed by the Amendment. Once a legal remedy exists, Congress and the courts cannot change the power granted to juries in the Amendment. The Amendment requires that the common law governs the jury trial right."

(Photo by D.F. Shapinsky (pingnews) at http://www.flickr.com/photos/pingnews/142498579/; license details there.)

One Nation, One Jury Pool?

It's a Saturday afternoon in October, 2012. You're sitting on your shady front porch in Atlanta, or maybe Albuquerque, opening the mail. It's a warm fall day, a perfect day in fact -- until you spot it. The envelope. A jury summons. You've read about this new system, but hoped somehow you'd escape it. You tear it open nervously, and your heart sinks when you see you've been called to jury duty . . .

. . . in Milwaukee, Wisconsin, in February.

National jury service. It's a bold response to a big issue, and it's the proposal made in Prof. Laura Dooley's paper, "National Juries for National Cases: Preserving Citizen Participation in Large-Scale Litigation." Prof. Dooley teaches at Valparaiso University Law School; her paper is to be published in New York University Law Review next year, and it was posted in draft last week on SSRN.

"A national case demands a national jury."

The problem -- at least tort defense lawyers call it a problem, but it can hurt plaintiffs too -- is that a single case in a single courtroom can decide the fate of hundreds or thousands of parties, either because many cases are joined in that one case or because that case is a "bellwether" that will direct the others. The perceived unfairness of this threatens the jury system itself, as Prof. Dooley explains in the abstract:

Procedural evolution in complex cases seems to have left the civil jury behind. The trend toward centralization of cases pending on the same topic in one court results in cases of national scope being tried by local juries; this reality is a catalyst for forum shopping and a frequent justification for calls to eliminate jury trial in complex cases altogether.

Prof. Dooley thinks the solution is clear, if we can only do it:

When a case of national scope is being litigated, the proper jury pool is not local (as in state court, where jury pools are typically defined along county lines), or even regional (as might be true in a federal district); a national case demands a national jury, drawn from a national pool.

Hey, what about . . .

That's on page seven of a 59-page paper. In the rest, Prof. Dooley tackles the questions and objections:

• What kind of case would have a national jury? Large multidistrict and class action cases, she argues, but also the "bellwether" cases. We might even use the same group of jurors in a series of separate, similar tort cases: "An argument sometimes used to denigrate jury trial in general is that a judge sees more cases across a career and has a better sense of how individual cases fit within that overall framework—a national jury that sat for a number of cases (on something like a grand jury model) could do the same. "
• Is it constitutional, and should we do it at all? Prof. Dooley argues yes to both. The jury system is weakening under the strain of these cases, she believes, and national jury service might reclaim it. "Without attempting to undertake a wholesale defense of the institution of the civil jury, a task already ably performed by many, I will argue here that in cases of national scale jury decisionmaking may well play a particularly important role in legitimating difficult verdicts. "
• Can a national jury be diverse enough? "The difficulty, of course, will be assembling a national jury pool representative of a country as large and diverse as the United States," Prof. Dooley says. "Using congressional districts might be a starting point, since those would comprise jural districts that have already withstood both constitutional and statutory scrutiny under the election laws."
• But then how big should the jury be? Bigger than they are now, probably. "[T]he discussion may well have to shift to how large a group can be assembled without becoming unwieldy. The question of optimal size for a national jury charged with consideration of a complex case, say a class action for damages caused by an allegedly defective product, should not be constrained by a rigid allegiance to the traditional size of juries." This in turn raises issues of voting mechanisms and unanimity, which Prof. Dooley addresses as well.

Each of these questions is provocative; the one that caught my attention most was "how large a group can be assembled." If you've done even a few mock trials, you know that large groups deliberate differently from small ones, in ways both "good" and "bad." (Jurors who are merely quiet in a small group are utterly silent in a large one, for example. On the other hand, large juries remember information better, and their verdicts are less "variable.") When does a group get so big that we have to stop calling it a jury and start calling it an electorate?

"Just a matter of cost"

As I read through all this, one question kept nagging at me, the biggest drawback of all. How will anybody get a national jury to come to Milwaukee in the winter? We can do it if we're determined, says Prof. Dooley at the end:

Other logistical concerns largely would be just a matter of cost—transportation, lodging, etc. Certainly the technological advances that have impacted other areas of procedure—discovery being a prominent example—could be brought to bear to alleviate some of the cost and inconvenience. In any event, our willingness to grapple with logistical problems and their possible technological fixes is a reflection of our commitment to lay decisionmaking in civil cases. Merely dismissing out-of-hand the possibility of making a national jury work plays into the agenda of those who harbor deep-seated distrust of such lay decisionmaking.

I have to admit she lost me here, although the final version of the paper may expand on the point. Are jurors going to hear the evidence on remote video transmissions, and gather together only when it's time to deliberate? Or will they review written submissions on their own time, the way three-judge factfinding panels in Japan do now? These questions aren't just logistical; "technological fixes" like that could leave us without a jury at all, at least one we'd recognize by that name today.

On the other hand, techology might be easier than actual travel. Faith and vision might move mountains, and the Milwaukee County Courthouse is beautiful, but it's hard to picture jurors from around the country packing their bags to spend the winter here.

(Photo of Milwaukee's December 1, 2006 blizzard, which shut down the town, by Purple Slog at http://www.flickr.com/photo_zoom.gne?id=311606855&size=s; license details there. That's my office building on the right.)

Blawg Review #127

Welcome to Deliberations, a blog about juries and proud host of the 127th edition of Blawg Review -- the "17 Best Tips For Voir Dire" edition.

We talk a lot about jury selection here, and one message comes up over and over. To get good at voir dire, you need to set aside your assumptions, and instead see the real men and women in the jury box. It isn't easy; your brain on autopilot is a pushy creature. But if you're trying to really see, the world is your classroom. Everything from your morning paper to your office politics is a chance to practice.

So is, it turns out, a trip through the best law blog posts of the past week. So here is Deliberations's list of 17 Best Tips For Voir Dire, as inspired and illustrated by some terrific law bloggers.

1. Assume nothing

If you assume you know what a potential juror -- or anyone else -- is about, you'll be wrong. Take the ungainly mobile phone salesman from South Wales auditioning for the show "Britain's Got Talent." In the video attached to Susan Cartier Liebel's "Lacking Confidence As a Solo? Sing Opera," he's so nervous he looks like he's going to cry -- but at the end, he's the only one not crying. You may have seen it already, but watch it again, and read the great personal story Susan tells in her post on it at Build A Solo Practice, LLC.

2. Look for leaders . . .

In voir dire you're looking not just at how individual jurors will respond to your case, but also how they'll work together. If one juror will steer the discussion, you want to know that.

Start with the talkative guy in the back row, since he's so easy to spot -- the guy who gets everyone else talking too. This week that was Scott Greenfield at Simple Justice. Scott was on the front end of the taser-at-the-Kerry rally story with "Elimination of Annoyances by Force" and "Jerk in the First Degree." Then Scott turned journalist, reporting the story of the New York trial where a murder charge was dismissed by a judge but then "mistakenly submitted to the jury," as the New York Court of Appeals put it. Orin Kerr's "A Remarkable Story" at The Volokh Conspiracy and Carolyn Elefant's "Conviction for a Murder Charge That Was Dismissed" at Inside Opinions picked up Scott's post and spread it far and wide. Meanwhile Scott himself was getting quoted in the National Law Journal for something else. If that guy is on your jury, you'd better convince him.

Look too for possible "social directors" -- jurors who might not dominate the discussion, but who will shape how the group works together. These include the ones who will make friends and organize the reunion party next year. Diana L. Skaggs at Divorce Law Journal would be one of those; she and Idealawg's Stephanie West Allen are "Calling Lawyers Who Blog" to "a gathering of lawyers who blog at next year's Idea Festival." Robert Ambrogi at Robert Ambrogi's LawSites brings bloggers together too (which qualifies him to speak sternly this week "On Blogging, Copyright and Transparency"). Gideon provides the social center for public defenders at Public Defender Stuff, listing among other things new posts from public defender blogs every day. And of course there's David Lat's virtual water cooler, Above The Law. A jury with any of those folks on it would have a color-coded snack duty roster hanging on the jury-room wall by the end of the first day.

3. . . . and dissenters

At the other end of the group dynamics scale, look for the juror who might not want to go along with the group. And whether or not you've recognized that juror, be ready for deadlock at the trial's end, with some idea of how you'll ask the judge to respond. The judge in Phil Spector's California murder appears to have botched it, as Jeralyn Merritt at TalkLeft explains in posts Wednesday and Friday. "Here's how to blow a five month trial out of a judge's desire to avoid a deadlocked jury," she says: "Let the jury deliberate a week and then change the jury instructions to add new ways the jury can find the defendant guilty."

4. Watch for points of view

Almost any trial can be seen from a political perspective. Walter Olson at Overlawyered doesn't hide his: he supports tort reform. He'd have no patience for the recent voir dire in which a plaintiff's lawyer suing British Petroleum projected a huge image of Enron's logo behind himself as he questioned jurors. "Maybe BP should have used its side of juror selection to flash large images of scandal-plagued or widely disliked Texas plaintiff's attorneys," Olson muses. It's great reading, but I'm guessing Walter Olson will never get to sit on a tort jury.

5. Look for skills

We often ask jurors to work at a high level, and it's worth figuring out in voir dire which jurors bring the skills the group will need. Many jurors are math-challenged, but more and more trials require a facility in math, like the ones Leon Gettler warns us of in "Securities Lawsuits On The Rise" at Sox First. Some jurors struggle with language, either because of literacy problems or because English isn't their first language -- and then there are language gurus like Ken Adams at AdamsDrafting, who can do multiple posts on what the word "material" means. Then there's the basic challenge of absorbing hours of new, and often not sequential, information. We all struggled with this in law school; anonymous new professor "Alex Aebutian," guest-blogging at Civil Procedure Prof Blog, helps his students by telling them not to try to outline.

6. Notice how they process information

In many trials, one side (typically the plaintiff or the prosecutor) seeks jurors who'll quickly decide how they want this story to end, while the other side seeks jurors who'll parse the instructions and the patent claims, making sure that every legal T is crossed. I call these "story jurors" and "process jurors," and you can sometimes recognize them in the way they express themselves.

Lee Barrett of E-Everything for Bankruptcy Lawyers... might be a process juror. Here's a pretty good hint: he calls the new Maryland E-discovery protocol "Cooler Than The Matrix." (It's a very thorough and helpful post, whether you're in or out of Maryland.) Likewise Lawrence Solum's meticulous summary of the various standards of appellate review, at Legal Theory Blog, sounds like the work of a process juror.

On the story juror side, Brett Trout at Blawg IT explores plagiarism, something story jurors have trouble forgiving even when it's clearly legal. Brett's posts deal with lawyers' and judges' plagiarism: Iowa Lawyer Sanctioned for Plagiarism and More on Plagiarism in Legal Briefs.

7. Know what generational differences mean, and don't

Even lawyers who've conquered most of their other assumptions still think they know how older people, or young people, will react in the jury box. At idealawg, Stephanie West Allen discusses Generation Y from the perspective of both law firm management and intellectual property law, and suggests we're better off asking ourselves questions than thinking we know all the answers.

8. Pay attention to the quiet ones

Then there are the jurors who just don't talk much. Two words of advice from Mark Bennett of Defending People: poll them, when the verdict comes in. In a recent trial he describes in "Why We Poll the Jury," it made all the difference.

9. Remember they have lives

For reasons I can't explain, most lawyers believe that when they're talking to potential jurors, the potential jurors are paying attention. It's not always true. Jurors are trying to listen to you, and sometimes succeeding. But nearly every juror will be distracted often during the day by some aspect of the busy life that didn't stop when she was called for jury duty.

One may be worried about an elderly parent in a nursing home -- perhaps with good reason, notes Frank Pasquale of Concurring Opinions. Another may be lost in the world of the online game he spends hours playing each day. (Online gaming is so strong that it supports real-money transactions with unclear legal ramifications, report students at the University of Illinois College of Law in their innovative Illinois Business Law Journal.)

One juror may just need caffeine; Jamie Spencer at Austin Criminal Defense Lawyer noticed a report on caffeine's addictive qualities, and considered how differently the law treats different drugs. Another juror may be a nursing mother, wondering if she can make the logistics work. New blogger Daniel Schwartz considers workplace nursing policies at Connecticut Employment Law Blog.

And yet another juror may be distracted for the very best of reasons. Karl Keys, steady anchor of the death penalty defense community at Capital Defense Weekly, has a gorgeous new baby boy.

10. Not all jurors are like you

It's hard to get outside our own worlds. If you have a golden retriever and kids who play soccer, you're likely to imagine your jurors have golden retrievers and kids who play soccer. Stop, think, expand.

Remember the Whitewater alternate juror who showed up every day in a Star Trek uniform until the judge kicked her off for talking to the press? If you're not into science fiction, you'd be amazed at how many people are. Volokh's Ilya Somin has a detailed and entertaining post on whether the Federation that governed much of Star Trek's universe was in fact very federal, and got a long string of commenters who clearly followed the discussion line for line. (One called it "the single-most geeky legal thread ever.") Meanwhile Quizlaw tells the story of a man who, when the police arrested him, claimed he was Darth Vader. And when Holden Oliver at What About Clients? writes "It's One Web Day--and big day for all you druids in Pittsburgh," don't think he's fully kidding. Druids get jury summonses like anybody else.

11. Some just want to get back to work

By their poorly concealed Blackberries you shall know them, the people who just want to get out of the courtroom and back to work. They're thinking about the complex projects they left behind, maybe a detailed post on the recording industry's efforts to limit traditional first sale rights (Frank Pasquale, writing this time at Madisonian.net), or the first significant effort to enforce the open-source GPL license (Tim Lee at TechDirt).

Don't blame these hard workers; envy them. If I were in the middle of a mammoth five-part overview of the Patent Reform Act of 2007 like the one that starts here at the PHOSITA blog, even I might skip jury duty.

12. Learn the publicity, whether it's national . . .

If your case has been in the news, you need to know exactly what jurors might have seen. There's nothing like blogs to learn the different ways someone might view your case -- and, since jurors often read blogs, the different voices that may still be ringing in their heads.

This week the Jena Six demonstrations were among the leading stories, and leading bloggers like Instapundit, Volokh's Orin Kerr, and Ann Althouse were frustrated at how hard it was to get the facts on what really happened in Jena. Libertarian Patterico at Patterico's Pontifications and liberal Jeralyn Merritt at TalkLeft both responded with long, multi-sourced posts, Patterico here and TalkLeft here. Meanwhile in a series of posts at The Volokh Consipiracy, guest bloggers K.C. Johnson and Stuart Taylor traced the roots of the Mike Nifong/Duke Lacrosse scandal. "It's like watching a train wreck in slow motion," wrote a contributor to this review.

13. . . . or local

Not all news is national. You need to know what's in the local paper as well. Milwaukee's Journal/Sentinel has its own law blog, a good one called Proof and Hearsay. If you had a trial here and read that blog, you'd know that the jury duty scam that has wandered the country for months has recently turned up here. In Boston, the story is the recent Bill Bellichick "Spygate" football scandal, which led Lisa Fairfax at The Conglomerate to consider individual versus collective liability.

14. They want the big picture

Studies show that jurors are thinking and talking about whether the parties are insured and what their legal fees are, even though those things aren't part of the evidence. Contingent-fee plaintiffs should think more about legal fees too, argue Drug and Device Law's Jim Beck and Mark Herrmann, since "typical engagement letters between counsel and product liability plaintiffs do not adequately disclose that a plaintiff may, after a loss at trial, be personally liable for tens of thousands of dollars in court-awarded costs."

15. If you're lucky, you'll have a juror artist

Here at Deliberations, we love juror artists -- the doodlers, the sketchers, the photographers, the dreamers. After all, this is the home of the American Gallery of Juror Art, the world's only (I think) showcase for art done by actual jurors while they were actually on jury duty.

David Giacalone might be a juror artist. His lovely blog is f/k/a, where he's been mixing law and haiku -- "breathless punditry & one-breath poetry" -- since 2003. This week, picking up on a post here, he looked at the coming re-introduction of the jury system to Japanese criminal courts. David wonders whether traditional Japanese attitudes toward authority and harmony will foil the goals of the jury reform movement, and the post weaves his thoughts, his sources, and the poems of Master Japanese haiku poet Kobayashi Issa.

16. Make a good impression

Jurors don't wake up in the morning full of admiration for lawyers. Barry Barnett of Blawgletter came back from a seminar this week and wrote: "Twenty-first century jurors start out seeing you not as a truth-telling seeker of justice but as a money-making manipulator of the justice system. You must convince them otherwise."

How do you do it? By showing some integrity, for one thing. "Teaching Ethics," at Professor Marc Randazza's The Legal Satyricon, can help there. To name just one particular, be thoughtful about how you've collected your evidence. In "High-Tech Divorce" at Trust Matters, Charles H. Green discusses how new technology lets us gather new information -- in ways that reflect very poorly on the gatherer.

Another way to make a good impression is to be organized. Evan Schaeffer at The Illinois Trial Practice Weblog is one of the best sources on that topic, including "Organizing Complicated Cases for Discovery" this week.

17. Remember the majesty

One last thing. When prospective jurors stand to take the oath, look up from your notes and remember what you're witnessing, what you're part of. Eric Turkewitz at New York Personal Injury Law Blogcaught the spirit when he wrote about the new jury-duty postage stamp:

Perhaps these stamps, if widely used, will be one tiny way to remind recipients of one of the cornerstones of our country's liberty: Power shall not rest with the few but with the many. And that is what jury duty is all about.

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If you liked any of this, please know that Deliberations welcomes new subscribers, either by E-mail (the form is at the top of the sidebar) or by RSS feed. Thanks to Blawg Review's wise anonymous Ed. for letting me do this and for 24/7 advice -- and to Colin Samuels at Infamy or Praise for submitting a ton of great posts. (Colin's own Blawg Reviews, #86 based on "The Divine Comedy" and #35 based on "The Inferno," are amazing.)

Blawg Review has information about next week's host and instructions how to get your blawg posts reviewed in upcoming issues.

(Photo by Bipin Gupta at http://www.flickr.com/photo_zoom.gne?id=776043570&size=s; license details there.)

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

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

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

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

A new set of skills

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

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

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

"Doesn’t anyone have any opinions?"

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

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

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

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

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

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

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

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

If You Could Have Only One News Source . . .

At least half the challenge in learning about juries is replacing your stereotypes, projections, and assumptions about people with real awareness. If I had to face that challenge with just one news source, it might be the Gallup Poll.

Actually it's a handful of news sources, because Gallup has different feed "channels" in which they report research results on different topics. I subscribe to all of them: business and economy, government and politics, health and healthcare, religion and social trends, and education and youth. They send me a handful of reports a week, most of which are eye-opening in some way.

Here are a few recent stories from Gallup that challenged what I thought I knew, or highlighted something I hadn't thought about:

• "Public Not That Worried About Mortgage Crisis Affecting Own Finances": "Americans appear to be far more apprehensive about the impact of the subprime mortgage crisis on the national economy than on their own financial situations."
• "The Divide Between Public School Parents and Private School Parents": "Parents with children who attend private, parochial, or who are home schooled are much more positive than parents with children in public school about the quality of education their children receive, and are less likely to report concerns for their children's physical safety."
• "Americans Put Obesity On Par With Smoking in Terms of Harmful Effects": "More than one-quarter of Americans report that obesity has been a cause of serious health problems in their family. Americans are more than three times as likely to say they are sympathetic to those who are significantly overweight as to say they are unsympathetic."
• "Most Americans Approve of Interracial Marriages": "The vast majority of whites and an even larger majority of blacks approve of interracial marriages. Older Americans -- regardless of race or ethnicity -- are less inclined to support interracial marriages than are younger Americans, but still, older Americans show majority support."
• "Sixty Percent of Americans Approve of Labor Unions": "60% of Americans say they approve of labor unions, while 32% disapprove. The public's approval rating of labor unions has not shown much significant change in the past four years." But more people approve than belong: "Only about 1 in 10 Americans say they personally belong to a labor union."

(Photo by Kate Mereand at http://www.flickr.com/photos/katmere/63785117/; license details there.)

Three New Juror Questionnaires

Three new jury questionnaires are in the Deliberations library. They all cover basic juror information, plus the specific topics I've listed here and probably a couple you'll think I should have listed separately. As always, these are useful in preparing voir dire questions as well as in drafting your own questionnaire.

• State v. Warren Jeffs, the 2007 Utah sex crimes trial of the leader of a Mormon sect (correction: polygamous sect, see the comment), alleging that he arranged the forced marriage of two young girls. They finished picking the jury last week (defense counsel reportedly asked, "Can you look in his eyes?") and the trial is in progress. The questionnaire is 11 pages long and covers publicity and attitudes about the Mormon church. There is an unusually thorough list of questions amounting almost to jury instructions, telling potential jurors what the law is and asking whether they can follow it. Thanks to Arizona trial consultant Dennis Elias for sending this.
• State v. Moe Gibbs, the 2007 scheduled North Dakota murder trial of a "former jailer" accused of killing a college student. The trial is set to start in October 2007, after an earlier jury deadlocked in the summer. The questionnaire is 34 pages and covers basic topics including race. Many of the questions are impressively phrased in ways that should make them easy to answer in a meaningful way: "Are you a good judge of character? Why or why not?" "Have you ever felt in fear of your life?" "Is there any racial or ethnic group that you do not feel comfortable being around?" (This was pieced together from a local newspaper web site where it was posted one page at a time, so skip through the page list at the beginning.)
• Rochester Development, the proposed questionnaire in a commercial civil case in Minnesota in which a real estate development company owned by Arabs sued the architect of a hotel it owned. The proposed questionnaire is 10 pages; the judge used a shorter questionnaire. The case was tried after September 11, so the questionnaire deals with a rare combination of subjects: attitudes toward Arabs and Muslims, and business fraud issues. It also has a chart to keep track of when jurors are reporting their friends' and loved ones' experiences and when they're reporting their own. Thanks to Diane Wiley of the National Jury Project for sending this.

________________

Can't-resist note: is it just me, or does sect leader Warren Jeffs look strikingly -- really strikingly -- like Gen. David Petraeus? I don't mean this as a political comment, honest.

Blawg Review Right Here Next Week

I'm privileged to be hosting Blawg Review next Monday -- and more than a little nervous.

I'll be honest. I don't think I fully understood when I signed up that the standard of, well, review on this thing is really high. There was Corporate Blawg UK who did the entire review in iambic pentameter. And there was Sheryl Schelin at SC Employment Law Blog, whose dog Rosemary wrote the whole thing for her. Then David Lat at Above The Law did it, which is fine for him because he's David Lat and he can say whatever he wants to.

I can't rhyme, my dog can't write, and I'm not David Lat -- so please, be kind. You can submit your blog post here. (Don't send it straight to me; when you send it through official channels, it's archived so somebody can step in and praise it if I get hit by a bus or something.) If your post deals with something I know anything about, like trials, so much the better. And see that "comments" box in the submission form? It's great if you put a little hint there as to what the post is about.

Crossing my fingers.

Jury Notes From Elsewhere, September 14

Jury wisdom from other people in the last couple of weeks includes:

1.  You're always in front of the jury.  J.D. Hull of What About Clients? tells a cautionary tale to remind us that "[j]urors are watching you, your attending GC, client representative and/or your witnesses AND your associates and paralegals like hawks: in and out of session, in the halls, in the back of the courtroom, restrooms, parking lots, restaurants. Very little is missed."  He's right:  if you're anywhere near the courthouse, you're in front of the jury.

2.  A reluctant juror in Florida.  Bob Kelley of Florida Jury Selection Blog ("the cure for the common voir dire") flags a new Florida case on "a frustrating and all-too-common reality of voir dire":  the juror who's trying to get sent home. 

3.  How's that trial notebook?  Evan Schaeffer of Illinois Trial Practice Weblog reminds us that a trial notebook, started early, is a powerful focusing tool -- and he gives details on how to put it together.

4.  Mark Bennett liveblogs Racehorse Haynes.  It doesn't get better than that.

5.  Mark Bennett (same guy) wants to start a voir dire school.  Listen to his idea:

There are companies that provide ordinary people for focus groups and mock juries; why not use one to gather a mock jury panel? By my math, a panel of 24 people for a day would cost $3,000. Add in room rent, refreshments, and a pro bono faculty of talented lawyers, and a day of jury selection school could be produced for less than $4,000.

If you took 12 lawyers at a time as students, the cost per student would be less than $350 per day. In an eight-hour day, each student would get a half hour or more before the panel, receive suggestions and critiques from the faculty, and learn from her fellow students' performances and critiques.   

I'm in.

6.  A 120-page juror questionnaire.  It's being used in a murder trial in Texas.  I don't have a copy yet, but Luke Gilman discusses it here in his Blawgraphy. 

7.  Blue brain, red brain?  Daniel Solove of Concurring Opinions reports here on the new study suggesting that "[l]iberals and conservatives think in fundamentally different ways."  "I always thought that the differences between liberals and conservatives could be explained by the fact that liberals are just smarter," he says.  Cognitive Daily critiques the same study here, and isn't convinced. 

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

To Persuade Jurors . . . Confuse Them?

If you want to persuade jurors, you must be clear, right?  Maybe not.  New research shows that a sales pitch is more persuasive when it confuses the customer. 

At least at first.  If you confuse them and stop there, they're just confused.  But if you confuse listeners and then resolve their confusion, scholars who study the "disrupt-then-reframe" technique contend, you'll persuade them more often than you would have if you had been clear from the start.

The latest paper on this topic was announced in a press release yesterday.  It's called "The Role of the Need for Cognitive Closure in the Effectiveness of the Disrupt-the-Reframe Influence Technique," by Frank R. Kardes, Bob M. Fennis and three co-authors, and it's being published in the October issue of the Journal of Consumer Research.  The article is subscription only, but the press release gets it across.

300 pennies

"Disrupt-then-reframe" -- DTR for short -- is what you do to your listener's understanding when you use what the authors call this "relatively new technique."  "In the seminal investigation of the DTR effect," the authors explain, scholars in 1999

used a subtle disruption in which the price of a product was indicated in pennies: “The price of these note cards is 300 pennies.” This disruption was followed by the reframing: “That’s $3. It’s a bargain.”

That moment of confusion, immediately explained, doesn't sound like much.  But it made a big difference.  In that 1999 study, people who got the price in confusing pennies and then clear dollars agreed to buy 65-90% of the time, while those who got only the confusing or only the clear explanation bought only 25-50% of the time.  "The DTR technique has been shown to increase  sales of Christmas cards, note cards, and cookies in door-to-  door sales campaigns for various nonprofit organizations  . . . and also to increase sales of  lottery tickets and to increase students’ acceptance of a tuition  increase," the authors tell us. 

The "need for cognitive closure"

Why does the technique work?  "Disruption has been thought to reduce counterarguing and to increase susceptibility to the reframing or rewording of the message," the authors explain, and the new study explores this area.  The confusing message creates a "need for cognitive closure," as the authors call it -- a need for answers.  In these experiments, subjects were measured not only for their reactions to the sales pitches, but also for how much they were just the kind of people who needed cognitive closure in life.  Not surprisingly, the results suggested that the more uncomfortable you are with uncertainty, the more strongly you respond to the disrupt-then-reframe technique.

Joining the confusing club

This theory probably contradicts most of what you've been taught about trial presentation.  But when you think about it, it makes sense.  People want to solve mysteries.  "Survivor" and "American Idol" wouldn't have lasted a year if the first episodes told us who survived and who won.  If you watch even for a few hours, you'll see that the world is full of people who get your attention by momentarily confusing you -- advertisers, headline writers (I tried it in the headline of this post), screenwriters, joke writers, your children. 

Everyone, it seems, except trial lawyers.  We keep plodding along -- clear as a bell, if we're lucky and good, but dull as dirt.  Maybe we need a little confusion, well timed and quickly resolved.

___________________

Note:  Guy Kawasaki, the marketing giant who shares my birthday, wrote about this paper today from the marketing point of view. 

(Image by Tall Chris at http://www.flickr.com/photos/tallchris/14288097/; license details there.)

Enron: Sixteen Very Angry Men And Women

Guess which group of people gave these answers when asked they thought of Ken Lay, Jeffrey Skilling, and the fall of Enron? 

• Skilling and Lay are “guilty”: “I think they probably knew they were breaking the law.”
• “Collapse was due to greed and mismanagement …. What a shame.”
• “Greed on Enron’s part …. A lot of people were hurt financially.”
• “It makes me angry that so many people lost their jobs and their retirement savings.”
• “I cannot say if they are guilty or innocent, I would say they are suspect.”
• “It was sad. People lost jobs and money—lots of money.”
• “If [Lay] did not know what was going on in his company, he was really a poor manager/leader.”
• “Angry” about Enron: “I feel bad for those that worked hard and invested in the corp. – only to have it all taken away.”
• “[There were] [n]ot enough corporate controls or effective audit procedures to prevent mismanagement of corporate assets.”
• “I think that the involuntary loss of the 401(k) savings made the most impact on me, especially because I have been forced to forfeit my own 401(k) funds to survive layoffs.”
• What stands out: “The sad state of the long-term loyal  employees who are left with nothing…”
• Bankruptcy caused by “[p]oor management and bad judgment. Greed.”

These aren't the words of Enron shareholders, or a random group of citizens.  They're the pretrial juror questionnaire answers from actual jurors who were seated and who deliberated in the Enron criminal trial. 

"We really want people who will start with an open mind"

The quotes come from the appeal brief that Jeffrey Skilling's lawyers filed last week.  (Thanks to White Collar Crime Prof Blog, among others, for posting the brief.  I love the image of those crime law professors in their white collars.)  The brief was the talk of the Web last week because of its awesome 237-page length, but the fact is it's worth reading. 

How could such an angry group have been sworn as jurors?  There were two main reasons, Skilling's lawyers argue.  First, the trial took place in Houston, where the average person and the average news story were bitter and resentful about Enron, far more so than in other cities.  Second, the trial judge's voir dire was brief and leading, maneuvering the jurors away from their questionnaire responses and toward safely neutral positions:

Sitting in a ceremonial courtroom, with the national media and spectators present, the jurors knew the world was watching. And the court made clear the answers it was looking for: “we want people who will listen to the evidence,” “we really want people who can start with an open mind,” “we don’t want you to prejudge people,” “we want 16 jurors … who will faithfully, conscientiously and impartially serve.” . . . The jurors responded by retracting their inflammatory questionnaire responses and insisting they could be fair, just as Dr. Bronson warned.

This was a disturbing pattern throughout voir dire:

• Questionnaire: “I think they are all guilty of knowing what was happening to the company, but did nothing to let the employees know.”
• Voir Dire: “It’s been a long time since I answered that questionnaire…. Honestly, I don’t know that I should have put it that way.”
• Questionnaire: Both Skilling and Lay “guilty,” “unsure” of ability to be fair.
• Voir Dire: “Q. Do you think  fraud happened at Enron?” “A. You know what? I’m not sure…. I don’t know if it was something fraudulent.”
• Questionnaire: “Angry” about Enron, because “Enron management … robbed [employees] of everything for their future.”
• Voir Dire: “I guess at the time … [I thought] there was some things going on that were not legal.” Now, “I don’t know if it was legal or illegal….”
• Questionnaire: “Unsure” of ability to base decision on the evidence.
• Voir Dire: “I would base my opinion on [the evidence]. I’m sure of that.”   

The brief's examples go on and on.  There's been some on-line derision at the length of this document -- but at least in the voir dire section, I'm not sure what I would have recommended they leave out.

(Photo by Alexander Steffler at http://www.flickr.com/photos/alex-s/153278358/; license details there.)

The Pros And Cons Of Death: The Bible In The Jury Room

Juries rely all the time on their personal experience and knowledge -- but they're not allowed to rely on authority or evidence beyond what they hear in trial.  A Ninth Circuit opinion today shows that sometimes the line between the two means life itself.

For and against

It's the sentencing phase of Stevie Fields's 1979 death penalty murder trial in California.  The jury foreman's name is Rodney White.  After the first day of deliberations, White goes home, pulls out his Bible, and starts making notes.  The next day, he shares with other jurors the handwritten"For" and "Against" list he has made.  "For" death, that is, and against death.  His notes list these pros:

• “placate gods”
• “eye for eye”
• “deterrence”
• “Fitting punishment to crime”
• “Rights of victim”
• “Duty of the state to protect citizens”
• “Biblical”
  • “Genesis 9:6 ‘Whoso sheddeth man’s blood by man shall his blood be shed, for in the image of God made He man’ ”
  • “Exodus 21:12 ‘He that smiteth a man, so that he dies, shall surely be put to death’ ”
• “Possibility of Repeated offenses”
• “Murder = a rejection of the values of society”
• “New Test”
  • “Romans 13:1-5 ‘Let everyone be subject to the higher authorities, for there exists no authority except from God, and those who exist have been appointed by God. Therefore, he who resists the authority, resists the ordinance of God; and they that resist bring on themselves condemnation
  • ‘For rulers are a terror not to the good work but to the evil. Dost thou wish, then, not to fear the authority?
  • ‘Do what is good and thou will have praise from it. For it is God[’s] minister to thee for good. But if thou dost what is evil, fear, for not without reason does it carry  he sword. For it is God’s minister, an avenger to execute wrath on him who does evil. Wherefore you must needs be subject, not only because of the wrath, but also for conscience’s sake.’ ”
  • “Luther, Calvin, Aquinas felt this to be supportive of capital punishment” and
  • “Per Paul’s letter to Romans: State has power for two reasons — 1. Satisfy demand’s [sic] of God’s service [and] 2. Protect society by deterring future crime.”

And these cons: 

• “No real deterrent value—mostly because murderers not normal”
• “Question of ‘Just’—There is no simple, ‘just,’ penalty”
• “Discriminatory selection”
• “Human fallibility—Perhaps wrong chap convicted.”
• “Rehabilitation”
• “ ‘Popular’ feelings”

The jury sentenced Fields to die.  Eighteen years later, the en banc Ninth Circuit Court of Appeals says that was okay.  The opinion is Fields v. Brown, decided today.

Majority:  it's just like memory

The court's majority, in an opinion by Judge Pamela Rymer, didn't directly decide the question, since they found that "the foreman's notes had no substantial and injurious effect or influence in determining the jury’s verdict."  But they were clearly untroubled by the pro-and-con list:

White’s notes are not like these examples [of impermissible extrinsic evidence]. They are a mix of ideas “for” and “against” capital punishment. Both the Biblical verses and the other concepts contained in the notes are notions of general currency that inform the moral judgment that capital-case jurors are called upon to make. As Justice Stevens put it, “[w]hile the question of innocence or guilt of the offense is essentially a question of fact, the choice between life imprisonment and capital punishment is both a question of underlying fact and a matter of reasoned moral judgment.” White’s “for” notes all exposit well-known themes. So do his “against” notes. In effect he marshaled general, commonly known points in favor of the death penalty — “eye for eye,” “deterrence,” “fitting punishment to crime,” “rights of victim,” and the Bible says so — along with general, commonly known points in opposition   “no real deterrent value,” “there is no simple, ‘just,’ penalty,” “discriminatory selection,” “rehabilitation,” and “perhaps wrong chap convicted.” Fields nowhere suggests that White was not free to recite these points, including those from the Bible, or to resort to their reasoning. It is difficult to see how sharing notes can be constitutionally infirm if sharing memory isn’t.

(Citations are omitted in all these excerpts; somehow they seem to make blog posts unreadable.)  It's not, the majority went on, as though the prosecutor had invoked the Bible:

Fields correctly points out that we have held it is improper and prejudicial for the prosecution to invoke God or to paraphrase a Biblical passage in closing argument in the penalty phase of a capital case. However, the prosecutor is constrained in ways that a juror is not. In Sandoval [the court's 2000 opinion on this topic], as we explained, the prosecutor’s argument frustrated the purpose of the closing argument, which is to review the evidence presented at trial that is relevant to the jury’s decision as defined by the instructions given by the court. Also, the prosecution’s invocation of “higher law” or extra-judicial authority violated the Eighth Amendment principle of narrowly channeled sentencing discretion. Further, we noted that  argument involving religious authority undercuts the jury’s own sense of responsibility for imposing the death penalty.  None of these considerations applies in similar fashion to a juror; what may be improper or prejudicial when said by a prosecutor may not be so when said by a juror.

Dissent:  it's an "extrajudicial code"

The two dissenting opinions focus on the Bible's role as a code of law, not a source of common sayings.  Judge Ronald Gould wrote: 

The “use by deliberating jurors of an extrajudicial code (not already embodied in their own characters) cannot be reconciled with the Eighth Amendment’s requirement that any decision to impose death must be the result of discretion which is carefully and narrowly channeled and circumscribed by the secular law of the jurisdiction.” California’s death penalty statute provides specific factors the jury is to consider to distinguish “the few cases in which [the death penalty] is imposed from the many in which it is not.” Here, White introduced to the jury deliberations only Bible quotations that were pro death penalty, and left out  Bible quotations that spoke to mercy. Moreover, the passages from which White quoted “explicitly reject[ ] the drawing of distinctions in murder cases,” and directed the jury to impose death in any case involving murder. These Bible passages, commanding death, inserted “higher law” into the jury deliberations and unconstitutionally relieved the jury from their individual responsibility to determine whether to commit Fields to death or sentence him to life imprisonment. . . . The Bible’s presence in the jury room as a focus of deliberations, if I may borrow a phrase from Judge Wilkinson, crossed “the constitutional line.”

Judge Marsha Berzon listed cases from other jurisdictions which treat the Bible as extrinsic reference material, and pointed out that the Biblical references were hardly just like memory for White, since he had to look them up:

[I]t is undisputed that White’s notes were the product of overnight Biblical research, rather than of familiarity with the Bible that White already had at the outset of deliberations. The case law proscribing importation of external information places its all on the proposition that this distinction matters: After we choose jurors, we want the decision made on the basis of what went on in the courtroom, filtered through the personalities, background information, and reasoning ability the jurors brought with them to court. But we do not approve of, and regard as misconduct, affirmatively gathering outside information. Further, the lengthy quotations, written down and passed around, conveyed a sense of authority quite different from a paraphrase or one line quotations spoken from memory, not least because they could be consulted repeatedly and outside of White’s immediate presence. The written, lengthy quotations introduced tangibly an external exhortation, that God, or the authors of God’s book — not just juror White — encouraged jurors to disregard the judge’s instructions and vote for the death penalty no matter what. The majority, therefore, is wrong to portray this case as similar to “sharing memory,” and this case does not raise the question of whether jurors act impermissibly by referring to their faith during deliberations.

Death at random

The case looks Supreme-Court-bound, then, on this issue of the line between inner morals and outer authority.  But even if the high court were able to draw that line unmistakably -- and it won't be able to -- Fields's case would cast a disturbing shadow.

The problem isn't just that smart judges can differ on whether jurors can cite the Bible.  The problem is the random way we found out what this jury did.  In the end, it's only coincidence that White wrote his notes down, that he showed the written notes to other jurors instead of simply talking to them about his findings, and that defense counsel somehow found out about it.  In another case, a juror might easily consult the Bible (or any other source), invoke its authority to other jurors, and no one would know.  Fields may live, and someone else may die, because these coincidences fall one way in one trial and a different way in another.  Of all the reasons to leave the death penalty behind, these meaningless variations seem among the most meaningful.

_______________

Notes:

1.  This opinion is 99 pages long and I've left out a lot -- like an entirely different issue, even more startling.  Judge Berzon summarized it this way, and it's really what happened:

The majority also concludes that we must accept as dispositive  a juror’s assertions that he was able to disregard the close resemblance between the unsolved kidnapping and rape of his wife not long before the trial and the crime with which Fields was charged. It does so even though the resemblance was so marked that the juror’s wife became convinced that Fields could have been her assailant and tried repeatedly during the trial to convince her husband to let her attend the trial so she  could tell whether he was.

2.  Robert Loblaw again covered this case almost instantly in Decision of the Day.  (How does he do that?)

(Photo by Dave Bullock at http://www.flickr.com/photos/archangel11/659176288/; license details there.)

American Gallery Of Juror Art Welcomes BB, A Milwaukee County Juror

So I'm checking Flickr for juror art, as I periodically do, and there's my old familiar Milwaukee County Courthouse. 

Built in 1931, it's not everyone's idea of a picture-postcard courthouse; Wikipedia says Frank Lloyd Wright once called it a "million-dollar rockpile."  But I love its echoing stone corridors, its soaring ceilings, and and its 24 then-modern murals of "the virtues," one in each of the original courtrooms, painted for the building by Wisconsin native Francis Bradford and financed by the WPA as part of the New Deal.

The pictures on Flickr weren't of the building's exterior or of the Bradford murals.  Instead, they were interior details, recorded with wit and warmth by a Milwaukee County juror who blogs as BB.  That's about all she'll let me say:  ""I'm BB, I'm a Web Information Architect at Hanson Dodge Creative here in Milwaukee, and my blog is BB-Blog at http://bblinks.blogspot.com."  But I'll gladly publish an anonymous artist if it lets me give you a little tour of my home courthouse.

Here's the door to the basement cafeteria.  BB says, "I love the old hand-painted signage," and so do I.

Then "[t]here are these weight & horoscope machines everywhere at the Milwaukee County Courthouse," says BB.  "I wonder what the story is behind them...?"  Me too.

And here's the way the rooms are marked, and a look at a typically beautiful vaulted hallway. 

BB liked this one for the room number, and quoted 1984:  "'You asked me once,' said O'Brien, 'what was in Room 101. I told you that you knew the answer already. Everyone knows it. The thing that is in Room 101 is the worst thing in the world.'"  And of course for some people, this one probably is.

See more of BB's work at her Flickr photostream and at BB-Blog, and see more juror art in the American Gallery of Juror Art.  All rights in these photos belong to BB; thanks to her for letting me use them here.

_______________

Historical note:  not everybody likes the Bradford murals, and it looks like that's been true from the start.  Researching this post, I found this excerpt from a 1932 issue of the Wisconsin Bar Association's Wisconsin Lawyer magazine:

Civil Judge A.J. Hedding did not like the mural painting entitled 'Labor,' which the artist, Francis Scott Bradford Jr., placed on the wall behind his desk in the new Milwaukee courthouse. Therefore, he personally purchased mauve colored drapes, which he caused to be hung over the painting, and then placed in front of the drapes a picture of George Washington. There was some objection to this action ... but the judge finally prevailed. The mural painting is of a large woman walking away from the spectators, done in modern style. The weight of opinion, newspaper and otherwise, seems to be in favor of Judge Hedding's treatment of the matter.

Law Professors Watch Jurors, And Learn

It's true that jurors come to court with unrealistic expectations about lawyers and the law, whether from watching too much "CSI" or from having paid insufficient attention on the day in high school civics when someone explained why we have both federal and state courts. 

It's just as true, though, that lawyers come to court with unrealistic expectations about jurors.  And our mistakes are hard to correct, because we so rarely get to watch jurors at work.  Whenever a lawyer serves on a jury and comes out surprised, it's a lesson to us all; if it's a law professor, all the better. 

Last week, law professor Gordon Smith got a jury duty notice, and he wrote about it in the Conglomerate business law blog:

I know law professors who have served on juries. Still, I wonder whether I would want one of us on the jury if I were a litigant. Perhaps the decision requires too much context, but as a general matter, wouldn't law professors tend to exert a disproportionate influence over the other jurors?

"These things stood out:"

They would exert a disproportionate influence, is the simple answer to that question, but a couple of Smith's commenters give more nuanced answers from their own experience.  One of them, commenting under the name AnonLawProf, tells a jury duty story that's interesting on several levels, beginning by confirming a law professor's ability to lead a jury and continuing with a great list of surprises:

I was (somehow) allowed on a criminal jury not too long ago. It proved utterly fascinating. I was, yes, made foreperson, and I indeed ran it like a seminar (no wonder it took two days to reach a verdict -- in a drunk driving case!). These things stood out: (1) how badly the state court system is run, and how poorly the judge protected jurors' time: a five hour trial took four days, plus two for voir dire; (2) the utter uselessness of the jury instructions; (3) the bizarre logical leaps a few of the jurors tried to make (e.g., "The legislature enacted this drunk driving statute so we could party without having to worry about it."); (4) how deeply formalistic and legalistic most of the jurors were.

Those four things would come as a surprise to a lot of trial lawyers, and they're all true. 

___________________

Thanks to Trial Ad Notes for picking this up, and private note to AnonLawProf:  when you tell us a drunk driving voir dire took two days, we're going to guess you live in Connecticut, the land of constitutionally guaranteed one-on-one voir dire in every case.  Am I right? 

(Photo by Douglas Muth at http://www.flickr.com/photos/dmuth/490613967/; license details there.)

If Your Juror Were Writing On Line, Could You Find It?

"Is that a juror responding to a verdict in the comments of this blog?"  That was the E-mail I got yesterday from sharp-eyed and generous Eric Turkewitz of New York Personal Injury Law Blog.  Sure enough, it was. 

"I would just like to ask that no one judge."

There are jurors who blog, and jurors who read blogs, so jurors commenting on blogs had to be next.  In her excellent Trial Ad Notes on Saturday, the University of Washington's Mary Whisner wrote about a recent $5 million jury verdict against a Seattle doctor, in a lawsuit brought by the family of a patient who died.  Mary's post noted the contentious and sometimes nasty on-line "sound-off" comments to the Seattle Post-Intelligencer's story on the verdict.  Later on Saturday, this anonymous comment appeared to Mary's post:

I would just like to ask that no one judge neither the Dr. in this case nor the family. I was able to sit and hear this case for the past five weeks and given the task of determining whether this Dr. was negligent or not.  All I want to say is that this is unfortunate for all parties involved.

It's an innocent remark -- nothing here for postverdict motions -- but the fact that it's there at all is striking.  If you're starting to get overwhelmed thinking of all the ways your jurors might be talking or reading about your case online, you're not alone. 

After, words

The juror's comment highlights a different point as well, a point about timing.  So far, this issue has come up mostly in the context of jurors who are on line while the trial was in progress.  A more likely time to find jurors on line, though, may be after the trial is over.  At that point, they're free to talk about the case -- and they're often still caught up in the case itself, in a way that makes them want to talk about it. 

The reasons they're caught up in it vary.  Some are simply impressed by the jury process itself, like New Jersey State Senator Robert Martin.  (He's the one who wrote a New Jersey Law Journal article about the deliberations he participated in, and got the verdict challenged for his efforts.)  Others are troubled by the evidence, as Mary Whisner's commenter seems to have been.  Then there are jurors who see their verdict criticized, and take it personally.  When Seventh Circuit Judge Michael Kanne, speaking in dissent eighteen months after the trial, called parts of the jury process in Illinois governor George Ryan's trial "totally astounding," the Chicago Tribune found jurors willing to defend their verdict as though it had happened yesterday:

"It's a shame that [the defense attorneys] feel the need to come after jurors with false allegations in a desperate attempt to get their client off," juror Leslie Losacco wrote in an e-mail. "I now understand why people despise most defense lawyers."

Searching 101

How can a trial lawyer hope to find all this?  Set up searches, and keep them open until you couldn't possibly need them.  Some ideas:

• If you don't know how to set up feed searches, preferably collected in a feed reader, it's time to learn.  This skill will help you in a thousand ways, long before you ever find a juror comment.  I've tried several feed readers and right now I like Google Reader best; it's quick and meshes well with Google's other services.
• Start with searches for the name of your case, plus "jury duty" and your city.  Then expand to some of the words that a juror might use to describe the case without identifying it.
• Set the searches to scan both blogs and news stories.
• Most searches will pick up "main" stories but not the comments to those stories.  If there's a blog post or news story highly relevant to your case, click through to it and look for comments, possibly multiple times. 
• Let others know you're looking.  No amount of searching could pick up all the possible places a juror might talk about your case.  I see nearly everything about jurors on line, but I would have missed this story if it hadn't been for Eric Turkewitz.

(Photo by striatic at http://www.flickr.com/photos/striatic/1629269/; license details there.)

Back To Basics: Nine Things To Look For In Voir Dire

Summer's over.  It's time to refocus, and if the recent search traffic here is any indication, it's time to get ready for trial.  Judges are back on the bench today, and a lot of this blog's readers spent some time yesterday researching their voir dire questions.

Which brings up a question I'm asked often.  We're getting an idea of what voir dire questions to ask, readers tell me, but what do we do with the answers?  We know we're supposed to get jurors talking and then listen, but what are we listening for?

I've been pretty clear about what I'm usually not listening for in voir dire.  I set very little store by demographics, and I don't trust bias questions to bring out jurors' secret or unconscious biases.  But I do have a list of the main things I'm listening for, the things I'm usually trying to figure out in voir dire.  I use it both as a checklist to develop questions, and as a reminder of what I'm looking for as I listen.   I keep tinkering with this list, but here's the version I'm using right now.

1.  Ability to serve.  Can this juror see, hear, and speak English sufficiently to participate?  Caught up in more substantive voir dire goals, lawyers can fail to strike a juror who simply cannot hear them.

2.  Preconceptions.  Does this juror have preconceptions about any aspect of this case?  Ask directly, yes, but more important, look for experiences and behaviors, as I've written before.

3.  Math.  Can this juror do math?  Unless it is a job requirement or the juror has had significant education in a field that uses numbers, you cannot assume the juror can perform mathematical calculations that seem elementary to you, even on a calculator.  A jury with typical math skills can easily return a verdict they did not intend because no one knew how to calculate percentages, or interest accrual.

4.  Leadership.  Will this juror lead others, or follow them?  Look for:

• Relevant knowledge.  Anyone experienced or knowledgeable in relevant subjects will be looked to by other jurors as an expert, whether or not he or she is otherwise a natural leader.
• Employment and experience.  Lawyers, others involved in the legal system, and teachers will almost inevitably be strong leaders.
• Age, sex, social class, education, and personality.  Here, demographics do have meaning, at least to me.  Over and over in mock trials, middle-aged male business managers tend to be jury leaders, while young blue-collar women and elderly women tend to be very quiet, and everyone else falls on the continuum between.  Ask questions to seek out leadership roles at work and in personal activities.

5.  Affinity.  Will this juror like me, my client, and my important witnesses?  Look for:

• Personal chemistry.
• Demographic similarity and similar "life story."
• Behaviors, especially those chosen or avoided because they speak "for" or "against" entities like your client.  If you represent a large national chain company, people who avoid shopping at Wal-Mart or drinking Starbucks coffee may not be your jurors.

6.  Sense of control.  Does this juror tend to believe that others and external forces control life events, or that people control their own destiny?  Look for:

• Prior complaints.  Ask questions to elicit all prior lawsuits, employment complaints, complaints to the Better Business Bureau, even insurance claims.  If the judge would let you ask whether the juror sends back food at restaurants, you would want to know.  Likewise jurors who have been sued, or have had complaints lodged against them, tend to feel very strongly about those who complain rather than taking responsibility.
• Explanation for prior failures.  How does the juror explain business failures, firings, and similar events, in her own life and that of friends and relatives?  Was the juror's job eliminated by foreign competition or a vindictive boss, or did she simply move on?  Obviously these questions need to be asked very respectfully.
• Supervisory and decision-making roles at work.  Supervisors often need to believe in personal responsibility and control just to perform their function.  In addition, they have more opportunities to control their work day, so they experience more personal autonomy and assume others do as well.
• Entrepreneurship, business ownership, and "self-made" success.
• Future plans and expectations.  Jurors with a high sense of responsibility and control may display that in describing their expected future.
• Age.  Some demographers suggest there is a typical "Generation X" juror who tends to believe each person is responsible for himself and should just move on if things don't work out.
• Physical strength or frailty.  A physically frail person can feel much more vulnerable to external forces of all kinds than a physically vital person would.

7.  Story vs. process orientation.  Is this juror more oriented to the parties' "stories," or to the elements of legal claims and defenses?  Look for:

• Style of expression.  "Story jurors," as I call them, often answer questions with a story.  "Process jurors" usually speak more precisely and answer the question posed more narrowly.
• Profession.  People involved in sales, marketing, teaching, and counseling often use stories and narrative as their main professional tool.  Accountants, engineers, doctors, and computer programmers use a clear process in their work.  (If this is difficult, ask yourself whether you would want to defend a deposition of the juror.  If you'd be exhausted at the end of the day, I bet that's a story juror.)

8.  Identification with status quo.  Does this juror feel she is a part of the "system," or estranged from the "system"?  Look for:

• Work experience.  An extreme "system juror" might be one who had spent a long career working successfully within a large organization.  An extremely "estranged" juror might avoid long-term employment and have a succession of disconnected jobs.
• Affiliation with institutions.  Strong connections to church, marriage, government, and other institutions make us feel more part of established society.  The weaker those affiliations, especially if the juror actively works in some way against those institutions, the weaker that connection.

9.  Willingness to punish.  Is this juror likely to punish the side she finds against?  This is a disputed topic, but it rings true to me.  Look for:

• Recent trauma, especially one creating resentment:  a recent death, recent divorce or separation, workplace trauma
• Low sense of control (see the "look fors" on that above)
• Sense that the world been unjust to them:  perhaps underemployment, either actual or perceived, or a sense that they did everything right and still lost out
• Sense that injustice can and should be set right:  some religious traditions, a social conservative or social liberal, strong self-image as a problem-fixer
• Strong belief in authoritative rules:  rigid, dogmatic, unempathetic, intolerant of rulebreakers
• Plain old anger.  Sometimes it's easy to pick up unexpressed anger if you're watching for it.

There's no formula as to how all this fits together -- you have to have thought about how these things play in your case, and even then you often won't have easy decisions.  People are complicated, and any given group of them trying to work together is a unique moment on the planet.  Facing a jury box so full of complexity, it's nice to have a checklist of things that may shape the way they work together, and this is the one I use.

(Photo by Scoo at http://www.flickr.com/photos/85086987@N00/385634700/; license details there.)