Deliberations

Who Should Stay And Who Should Go?

You're a federal prosecutor in Chicago, starting a trial against a Yale-educated, African-American consulting firm executive who used his firm's payroll software to add $68,000 to his paychecks over four months in 2000.  The defendant claims he meant to pay the money back. 

The jurors file in, and you take notes as the judge asks them questions.  Which do you keep, and which do you strike?  Seriously, try it:

Juror 9 was a 39-year-old single Hispanic man from Berwyn, with no children.  He worked for five years at a cardboard-box factory, and before that drove a forklift for eleven years.  He lived with his retired parents.  He received a GED and was attending heating and air-conditioning classes at Morton College.  . . . Juror 9’s answer to Question 13 (“What are your hobbies and spare time activities?”) was:  “going to scool for a carrer.”

Juror 27 was a 39-year-old married African-American woman from the south side of Chicago, with one child.  She had a diploma in diesel mechanics from the American Diesel Institute and had taken one year of business courses at Chicago State University.  She had worked for sixteen years as a bus service supervisor for the Chicago Transit Authority.  Juror 27 explained during questioning, “I fix a lot of buses.”

Juror 1 was a 31-year-old single Hispanic woman with no children, from the northwest side of Chicago. . . .  She had a GED education with some college courses in accounting, and had attended a vocational banking school.  She worked as a postal worker for four years.  During in-court voir dire, she disclosed that her aunt was a police officer for twelve years in the Chicago Police Department, Narcotics Division.  Juror 1 was a victim of a crime—she had a chain stolen from her neck.  Her brother, for reasons unknown to her, was under house arrest at a prior time.  She also testified on behalf of a defendant in a statutory rape case.  The testimony was more than ten years earlier and involved the age of the alleged victim. She said that she could be fair to all sides involved in the case.

Juror 13 . . . had an MBA from the University of Chicago and had worked as a product manager and consultant for two cosmetics companies.  She also had lived in several places before coming to Chicago, including St. Paul, Minnesota; St. Louis, Missouri; Paris, France; New York, New York; and Bangkok, Thailand. . . . She had a brother who had been a police officer for 12 years and a friend who had recently joined the United States Air Force Judge Advocate General Corps.

Learn how the real prosecutors made these calls and many more in the Seventh Circuit's U.S. v. Stephens opinion today.  In the course of deciding (and denying) a Batson challenge, the court evokes the swirling details and doubt of real-life voir dire better than a lot of legal fiction does.  You get a profile of every juror in the venire, what the prosecutors' notes about them said, how they rated each one and why. 

Test your instincts against the prosecutors, and against the majority (Judge Kanne, joined by Judge Posner) and dissenting (Judge Rovner) opinions.  While you're at it, try Elliott Wilcox's two-pen voir dire tip from Winning Trial Advocacy Techniques Blog.  By the end of any voir dire, your notes will be a sea of scribbles, and you'll wish you'd used this simple way to make the important stuff jump out.

(Photo by Kalandrakas at http://www.flickr.com/photos/eelssej_/532804210/; license details there.)

Catching Up On The News

I've been deep in trial preparation, and thus off line, for the last week or so, and I've missed a lot.  There are over a thousand stories piled up in my feed reader.  Here are some worth stopping over:

• They're frugal in Nashua.  Jim Burke and Dave Eisner of New Hampshire Law Blog point to research done by the Nashua Telegraph in December.  The Telegraph compared verdicts in Nashua County, New Hampshire with those in three nearby counties.  The verdict-crunchers found that, true to their reputation, "Nashua juries tend to be a tad tight-fisted."  The difference was most striking in medical malpractice cases:  "Plaintiffs have won just three of the 23 malpractice cases (13 percent) tried before juries in Nashua in the last 15 years, and the average award was less than $7,000." 
• Decisions as we age.  The New York Times wrote yesterday about a study of decisionmaking in the elderly.  As you might expect -- or might have experienced -- it declines.  In the study, research subjects were asked to draw cards from four different decks.  "Two decks, not to mince words, are for suckers," the Times summarized.  "They give short-term rewards but long-term losses. The other two decks do the opposite."  Elderly subjects kept drawing from the sucker decks, long after younger subjects had tried the other.  The work helps explain how con artists prey on the elderly -- and how elderly jurors might struggle to reach a verdict.
• A jury questionnaire in Milwaukee.  Thanks to the Milwaukee Journal-Sentinel's great law blog Proof and Hearsay for posting the jury questionnaire used by local judge M. Joseph Donald in a child molestation case.  Proof and Hearsay doesn't sound like a fan of the process, noting that the questionnare includes "several heavyweight questions about being victimized by/accused of sex crimes that the randomly-picked people had to answer to comply with their civic duties."   Better in the questionnaire than in open court, is my view, and this sample will appear in Deliberations' library shortly. 
• Taxes on trial, maybe.  Actor Wesley Snipes doesn't believe in paying taxes, and the WSJ Law Blog has a nice review of his trial as it goes to the jury.
• Blue-eyed Humans Have A Single, Common Ancestor.   So says a new study via Science Daily.  Nothing at all to do with juries, but as a blue-eyed human I thought it was pretty interesting.

(Photo by Valerie Everett at http://www.flickr.com/photos/valeriebb/1681924558/; license details there.)

When Women Judge Women

Personal injury plaintiffs' lawyers have often told me they hope for female jurors -- unless the plaintiff is a woman.  Women judge other women harshly, the theory goes.

The demographics of Anita Hill

Ever since the Clarence Thomas hearings, when I was startled at how many of the female staff in my office seemed to despise Anita Hill, I've suspected there might be something to this stereotype -- especially when the woman being judged was successful in business or politics.  But I never saw research to support the idea when it came to juries.  To the contrary, the comprehensive 2001 literature review by Dennis Devine and others, "Jury decision making: 45 years of empirical research on deliberating groups" in Psychology, Public Policy, & Law, says, "It is surprising that defendant gender has been largely overlooked [in studies of juror characteristics]."  Devine and his co-authors found a 1985 study finding juror gender had no effect on verdicts, and a 1972 study suggesting that jurors actually support parties of their own sex.

Zero-sum success

A new paper released today, though, supports my plaintiffs' lawyers' hunch, and offers a reason why it might be true.  In two studies, women were able to judge their own competence more kindly when they judged a successful women harshly. 

The paper is "Motivated to Penalize: Women's Strategic Rejection of Successful Women," by Elizabeth Parks-Stamm and two other researchers from New York University.  It's from my new favorite RSS feed, Personality and Psychology Bulletin.  The abstract (which is all I have) is:

Two studies tested the hypothesis that females penalize women who succeed in male gender-typed jobs to salvage their own self-views regarding competence. The authors proposed that women are motivated to penalize successful women (i.e., characterize them as unlikable and interpersonally hostile) to minimize the self-evaluative consequences of social comparison with a highly successful female target. Results supported the hypothesis. Whereas both male and female participants penalized successful women, blocking this penalization reduced female—but not male—participants' self-ratings of competence (Study 1). Moreover, positive feedback provided to female participants about their potential to succeed (Study 2) weakened negative reactions to successful women without costs to subsequent self-ratings of competence. These results suggest that the interpersonal derogation of successful women by other women functions as a self-protective strategy against threatening upward social comparisons.

That's social-science writing, so you'll probably have to read it twice.  The second time through, be sure to catch this phrase:  "both male and female participants penalized successful women."   That's a different, and equally depressing, post.

(Image by Gisela Giardino at http://www.flickr.com/photos/gi/324724106/; license details there.)

Juries Through The Lens Of Race

A broad survey on almost any topic is of interest to jury watchers, but a broad survey that's actually about juries is rare.  So Deliberations has to stop the presses when  Harris Interactive releases a major poll on juries and jury duty.  The entire poll is interesting, but on Martin Luther King Day, the question you keep coming back to is the one that turns on race.  White Americans trust juries far more than African-Americans do -- a fact as unsurprising as it is sad.

Who comes to jury duty?

There are lots of findings here about who really serves on juries: 

[W]hile two-thirds (65%) of Americans have been called to serve jury duty, two-thirds of that (68%) actually attended, leaving one-third (32%) who did not. Of those who have attended jury duty, just over half (55%) have actually served on a jury. Bringing this back to the population as a whole, a plurality of Americans (44%) has attended jury duty and one-quarter (24%) has actually sat on a jury.

You're more likely to have been summonsed, as they say, if you live on one of the coasts, but more likely to actually serve if you live in the South.  More men show up than women, "most likely due to the 'motherhood exemption' almost all states have," and educated people are less likely to serve.  (Amazingly, Drug and Device Law Blog this very day wished that someone would research whether plaintiffs' lawyers strike educated jurors as a matter of strategy.  Here's a start.)

Are juries fair? 

All that is interesting, and in some trials it might be really helpful to know, but the riveting question here is the one about fairness.  “How often do most people who are on trial have a jury that is fair and impartial?” the researchers asked -- and the answer depended on the race of the person they were talking to.  Sixty-three percent of white respondents said either "all the time" or "most of the time."  Only 37% of black respondents chose one of those answers, and 14% of the rest chose "rarely" or "never."

We all dream of a courtroom where every person confidently expects fairness from an impartial jury.  That dream is not reality yet.

(Drawing by "medium as muse" at http://www.flickr.com/photos/dave_mckeague/362318943/; license details there.)

What Is It About An Underdog?

Given the presence of well-known underdog stories in literature, mythology, and sport, it might seem intuitively obvious that most people sympathize with and support such figures. But why should we be drawn to the Davids, Texans at the Alamo, Greeks at Thermopylae, or Rocky Balboas of the world?

That's the question posed by the University of South Florida's Joseph A. Vandello, Nadav P. Goldschmied and David A. R. Richards in their paper "The Appeal of the Underdog," in the December issue of Personal and Social Psychology Bulletin.  (Because I'm so slow in posting this, the whole article is free on line; download it here.) 

Hustle, effort, heart, and wanting to win

The four experiments described in the paper are fun, and the results predictable:

• When students were told which countries had the most Olympic medals and asked which teams they'd back in various pairings, they rooted for the teams with fewer medals. 
• When students were shown a map of Israel dwarfing the the Palestinian territories, they expressed support for the Palestinians -- but when they were shown a map of Middle Eastern countries dwarfing Israel, they expressed support for Israel.
• Students watching a taped basketball game not only rooted for whichever team they had been told was the underdog, but attributed more "hustle, effort, heart, and wanting to win" to that team.
• Students told that a team was likely to lose and that it had a lot less money than the other team, they rooted for that team.  But when they were told a team was likely to lose and that it had a lot more money than the other team, they didn't much care who won.

Why we do it

So why do we root for the underdog?  The fourth experiment gives a big clue to one of the reasons:  because we want to help compensate for undeserved inequality.  If one contestant is outmatched for reasons that aren't his fault, that's unfair, and our sense of justice reaches out to fix it. 

We might also root for underdogs just because we enjoy drama: 

An alternative, or additional, motivation for supporting underdogs might derive less from abstract moral concerns about fairness and more from self-interested,   rational calculations of one’s own emotions. Because underdog success is by definition unexpected, this may increase the excitement of rooting for an underdog.

And for almost every little guy who wins, there's a big guy who loses, and that makes us happy too:

Rather than being strongly supportive of underdogs, might people instead root against dominant entities (this would be consistent with the sentiment, “my favorite team is whoever is playing the Yankees”)?

Working with it

Many trials can be framed as an underdog against a big dog, and this dynamic is often critical.  Civil personal injury lawyers often use the narrative brilliantly; although defense lawyers in those trials can sometimes turn it around if they show that the plaintiff somehow has earned his "weaker" position.   On the other hand, even though a criminal defendant is usually a heavy underdog, criminal defense lawyers (except Jon Katz) are less successful in using the "underdog" narrative -- often, again, because the government convinces the jury the defendant's life of crime is what put him in the underdog spot.

Let this paper challenge you to think more subtly about the underdog dynamic than you might have before.  Who is the underdog in your next trial?  Is it fair or unfair that she's in that position, and why?  Take a few steps back -- is there a sheer entertainment value in watching how the weaker side might conquer?  How does that affect your client?  Is there a "big dog" that jurors might enjoy taking down, no matter how much the underdog deserves to lose?  What is it that makes that party so easy to root against?  Are you that party?

(Photo -- get it?  Under dog? -- by Dan Bennett at http://www.flickr.com/photos/soggydan/481674998/; license details here.)

Thank-You Notes

If you're not quick with thank-you notes, they start to stack up.  So I can't delay any further in thanking:

1.  Blawg Review's wonderful Ed. -- for letting me host Blawg Review last year at all, and for awarding my effort a bronze medal, third best of the Blawg Review posts of 2007.  Since first- and second-place honors were so clear (Colin Samuels's final installment of his masterful Dante trilogy and Eric Turkewitz's brilliant New York Marathon edition), and the other submissions were so good, I'm extremely proud of this. 

2.  The ABA Journal's Stephanie Francis Ward for quoting me in her terrific story on trial blogs, "Full Court Coverage," in the current issue. 

3.  Gideon for hitting Publish on a post at Public Defender Stuff that contained the phrase, "the incomparable Anne Reed."  I may never get over it.

(Photo by Gisela Giardino at http://www.flickr.com/photos/gi/304120801/; license details there.)

Between Science And Voodoo: The Real Uses Of Voir Dire

There he goes again.  Another post from Scott Greenfield along the lines of "I love Anne Reed's blog, but I don't believe a word she says."  Scott was teaching at Cardozo Law School's Intensive Trial Advocacy Program, and hung around for the voir dire session.  His conclusion:  "[M]y confidence in voir dire is restored.  It's still just voodoo."

It's one of my enduring frustrations that Scott's jury-selection-is-hooey posts are so good, and so difficult to respond to with clarity.  I've tried and failed before, and slow learner that I am, I'll try again.

A mock voir dire

What was the demonstration that proved to Scott that voir dire is voodoo?  It was, as he says, pretty cool.  Two experienced lawyers did a "beautifully crafted and masterfully executed" mock voir dire of twelve law-student "jurors," with each lawyer allowed fifteen minutes to talk to the group.  The students were "responsive and articulate."  There was moderation and commentary from Cardozo professor Barry Scheck (professor and bona fide hero, to be accurate; he runs not only this trial advocacy program but also the Innocence Project). 

The lawyers told the group which jurors they'd strike and why; then the jurors told the group which side they liked and why.  And it didn't match up:

Everyone involved was half right and half wrong.  Everyone.  Decisions were made for speculative reasons or no reasons.  Assumptions were made that were dead wrong.  It was no better than flipping a coin.  Despite the picture perfect exercise, these experienced and competent lawyers picked jurors on a wing and a prayer.

"[T]hey learned nothing that made the process accurate," Scott says.  "[A]ll this effort to refine what we do in voir dire to gain insight where we have none is an exercise in futility."

Who said anything about accurate?

I know Scott speaks for many, many others when he says this.  I think he's wrong.  Voir dire isn't futile.  What's futile is expecting "accuracy," or anything like it, in jury selection in the first place.

We make dozens of decisions whenever we give an opening statement:  what to leave out, what to include, where to begin, how to act.  We don't expect those decisions to be "accurate."  Yet we gladly spend years working on the challenging and rewarding skill of opening, because we know it matters.  The same is true of direct examination, cross, closing argument, preserving the record, working with documents, the whole list of trial skills -- except one.  When it comes to voir dire, lawyers expect more.  Encouraged, I'm afraid, by a few overpromising jury consultants, lawyers insist that if a voir dire teacher or consultant can't deliver jurors who will infallibly deliver a favorable verdict, then the whole idea of studying voir dire must be snake oil.

Killing the myth

Let's kill the myth of accuracy in voir dire once and for all.  Among the many reasons you can't predict any juror's verdict are:

• Jurors reach verdicts by interacting with each other.  The same person, sitting in two different groups, can react to the same evidence in different ways.
• Jurors reach verdicts by interacting, if indirectly, with you, your client, opposing counsel, the judge, and the individual witnesses, not to mention the evidence.  The complexity with which those myriad forces interact in any specific trial can only be respected; it can't be predicted.
• Jurors don't know their own prejudices.  Chances are very good that when those students in the ITAP described which way they thought they were leaning and why, they weren't always right.
• Statistical probabilities mean little when you're looking at a group of twelve people.  Say you somehow knew that 99 out of 100 white Midwestern soccer moms would support your case; is Mrs. Brown in the jury box the one, or one of the 99?
• You can never learn enough.  People are so complicated that you don't have time to get through even the important experiences and attitudes they'd be willing to tell you about, let alone the critically shaping experiences they'd never share.
• You don't know how the trial will go.  No trial has ever failed to surprise the lawyers in some way, usually an important way.  The trial you think you're picking jurors for isn't the trial that you, or they, are about to have.

(Only one of those factors, the limitations of statistics, was at work in the ITAP demonstration.  The lawyers' picks might have looked a lot better after a full trial than they did after the half-hour exercise.)

The uses of voir dire

So if we can't predict verdicts, should we just skip peremptory strikes?  We may have to someday, but I hope not. 

I've listed elsewhere what I try to look for in voir dire -- things like leadership, sense of control, identification with institutions and the status quo, and just plain whether this person is going to like me and my client.  (Eric Turkewitz says he looks for jurors he'd like to have a beer with.)   You can get a sense of these things in a good voir dire, if you're listening and open.

And what do you do with this "sense," when you get it?  You use your experience and intuition to make the best strike decisions you can -- knowing that those decisions might turn out poorly, just as any of the hundreds of other decisions you'll make in the trial might turn out poorly.  And when voir dire is over and you're talking to the group you helped select, you use what you learned in voir dire to do a better job of talking to them, just as you have better conversations outside the courtroom with people you know a little about.

That's not science.  But it isn't voodoo.  I believe in voir dire.

______

(Photo by at http://www.flickr.com/photos/93574830@N00/22205003/; license details there.)

What Not To Wear

Here in Milwaukee we're kind of uncomfortable with how we're perceived by outsiders.  Once we get done explaining that we're in Wisconsin, not Minnesota, we know what questions come next.  No, it's not really like "Laverne & Shirley," and we don't drink beer all day long. 

When the local legal news makes a national splash, it usually doesn't help.  (Remember Jeffrey Dahmer?  He was from here.)  So we winced when Milwaukee County Circuit Judge William Sosnay was Above the Law's "Judge of the Day" today; winced again when the same story inspired the WSJ Law Blog to start a new chapter in its society of sartorial societies; and winced a third time when Corrections Sentencing captioned the story, "See Why I Left Wisconsin?"

What was it?  A lawyer and a judge arguing over what to wear.  As the Milwaukee Journal/Sentinel reported (and the paper's great law blog Proof and Hearsay spread the word):

Justice may be blind, but Milwaukee County Circuit Judge William Sosnay's sense of courtroom fashion is not.

In the courtroom of the pompadoured judge long known as a fastidious dresser, a sentencing hearing in a misdemeanor case was delayed for three hours Tuesday after a veteran prosecutor turned up for court wearing an ascot.

A courthouse rule requires all lawyers to wear neckties, but prosecutor Warren Zier's occasional choice of creative cravats drew the judge's ire.

Sosnay's review found Zier's red ascot - which matched the handkerchief in the breast pocket of Zier's pinstriped gray suit - "borders on contemptuous," given the judge's prior warnings that he only cottons to neck- and bow-ties.

"This is not about the definition of an ascot or a necktie," Sosnay said in court, addressing a reporter in the gallery directly while a case waited to be heard. "This is an issue which I believe deals with the integrity of the court."

Luckily this is a jury blog, so there's no need to me to take sides.  On the only issue I write about, they agree, and they're both right:  don't wear an ascot in front of a jury. 

______________

(Photo of Milwaukee's beautiful lakefront, which hardly ever makes national news, by Indy Kethdy at http://www.flickr.com/photos/indykethdy/2122175295/; license details there.)

The Jelly Bean Theory of Keeping Jurors' Attention

When you need jurors to understand new and complicated facts or concepts, you have a problem:  you need to repeat the material more than once, but when you do, you're punished for it.  A new and seemingly unrelated study suggests a path between the rock and the hard place.

The dilemma is clear.  On the one hand, you know you can't just have a witness recite the material once and consider it learned.  Most people, no matter how smart, learn much more easily when the material is repeated.  On the other hand, jurors think they hate repetition, and judges know they do.  Present the same fact or concept a second time and you'll typically be met with a quick sustained objection or a jury box full of people shifting in their seats and rolling their eyes.

Enter the jelly bean.

Cherry, orange, strawberry, peach, and tangerine

I've been off line for a little while, and I'd prefer you not ask why one of the first news stories I opened on my return was a news release titled "Trying to stay on a strict diet? Focus on the details."  It's January, after all.  But the story turned out to be relevant to more than my New Year's resolutions. 

The researchers gave subjects jelly beans.  Twenty-two jelly beans each, in five flavors:  cherry, orange, strawberry, peach, and tangerine.  (Why twenty-two and not, say, twenty-seven?  The press release doesn't say, and I don't have the whole article.)  The research subjects had the grueling job of eating the jelly beans and rating how much they enjoyed this jelly-bean-eating thing.  When it was over, they had to answer more questions:  "how well they could distinguish the flavors, how much they noticed the different flavors, how repetitive the eating task felt, how similar the jelly beans seemed to each other, and how much variety they perceived."

The subjects were in two groups, and the two groups heard different words about what they were eating.  One group was asked only to eat the "jelly beans."  The other group was asked to eat "cherry jelly beans," "tangerine jelly beans," and so on.  And that difference -- an extra word articulating the obvious fact that the beans were not exactly the same -- changed the subjects' experience.  The folks who were offered another "peach jelly bean," then "strawberry," had a great time, enjoying every bean and ready for more when the 22-bean ration was gone.  But the poor subjects who were offered "jelly bean" after "jelly bean" got bored and didn't want more. 

Cognitive as well as sensory

The amazing thing about this, of course, is that there was no difference in what these people were actually eating.  The ones who thought they had savored a delicious variety had the same pile of jelly beans as the ones who thought they had endured a tedious sugary ordeal. 

The paper's author, Joseph P. Redden of the University of Minnesota, says the magic isn't limited to food:  "Subcategorization [that's the "tangerine" label] reduced satiation for experiences that were more cognitive (e.g., studying) as well as more sensory (e.g., eating snacks)."   And he suggests there may be many uses for this lesson.  Subcategorization should be useful "when facing limited options, developing expertise, or following a repetitive regimen," he says.

Or when sitting through a trial.  In presenting repetitive material, there is almost always a way to group it into segments that are different from each other, and to describe the differences briefly to the jury.  Any good teacher can tell you how to do it -- or, if the teacher is your expert witness, do it for you.  Jurors think in segments anyway, so the simple act of dividing the material up will help them absorb it.  If you label the segments too, they might even start looking forward to the parts of the trial where you're the one standing up. 

The paper is Joseph P. Redden, "Reducing Satiation: The Role of Categorization Level," in the February 2008 Journal of Consumer Research.  I'm not aware of an free copy on line, but the press release is here.

(Photo by Jonathan Assink at http://www.flickr.com/photos/flyingdutchphotos/2063336707/; license details there.)

Welcome, Court-O-Rama Blog

Legal Blog Watch posted today about bloggers' resolutions for the New Year, and I'll confess I have one:  stop trying to post daily.  The fact is I'm no Scott Greenfield (less than 48 hours into 2008, the man has ten posts up, for heaven's sake), and if this project is going to remain fun, I have to slow it down.

But fear not:  if I haven't posted lately and you're looking for timely, spirited, approachable, and sometimes funny material about courts and juries written by a lawyer named Anne, there's a new blog for you.  Anne Skove, former editor of the National Center for State Courts' weekly Jur-E-Bulletin, is a blogger now, at Court-O-Rama, "the least dangerous blog."  She and her co-blogger Tom Carlson explain simply:  "It's a blog. About the courts. We hope you learn something new, and if you're not careful, you just might enjoy yourself."

If you subscribed to Anne's wonderful Jur-E-Bulletin, you'll join me in expecting great things here.  If you didn't, you still should; the style and substance she brought to it are still there.

(Photo by Michel Verburg at http://www.flickr.com/photos/michelos/1015826394/; license details there.)