Deliberations

Values And Voir Dire

Most trial lawyers hope their jurors will be alert, attentive, honest, and fair.  Some lawyers, though, need more:  they need jurors who can be noble.  Defense lawyers in death cases come first to mind, but many other lawyers can succeed only if jurors can rise above defensiveness and retribution, and somehow keep themselves open to difficult arguments.

Can you help jurors do this?  A new study, building on prior work, hints that it's possible. 

How to tell a smoker to quit

The researchers -- Jennifer Crocker and Yu Niiya from the University of Michigan and Dominik Mischkowski from the University of Konstanz -- found that when subjects spent a short time reflecting on their values, they not only felt more positive emotions, but also were more open and less defensive in response to challenging arguments.  Their paper, "Why Does Writing about Important Values Reduce Defensiveness?," is in the new issue of Psychological Science, and there's a good press release here.  (At least for now, the whole paper is on line free here, but I think that must be a mistake on the journal's part.  I found it by searching the title, but if you go in by the "front door," it's subscribers only.)

The press release describes the study this way:

In the first study, the researchers asked participants to rank six values -- social life, religion/morality, science, business, arts, and government. One group later wrote for 10 minutes about why their most important value was important to them, while the control group wrote for 10 minutes about how their least important value might be important to others. Afterwards, they rated how much writing the essay made them feel love, empathy or other emotions.

In the second study, participants were smokers and nonsmokers. Like the first study, participants wrote about an important or unimportant value. This time, however, they next read a fake article claiming that smoking increases the risk of abdominal aortic aneurysms, a bulge in the main artery of the heart, and the quality of the research described in the article.

The results for both studies were very strong. In both studies, those who wrote about an important value felt more loving and connected after writing the essays than those who wrote about an unimportant value. And specifically in the second study, writing about an important value made smokers less defensive -- they were more accepting of the article’s claim that smoking harms health if they wrote about an important value instead of an unimportant value.

In real life?

It's not clear whether this might be of any practical help at trial.  You can certainly ask jurors to tell you about their most important values, and jurors who do this might respond with positive feelings and openness -- if you haven't embarrassed them with such a personal question in open court.  How long the reaction might last, though, and whether you are someone who can ask the question with honesty yourself, are questions not covered in the study.  It seems certain that if you're being manipulative, it won't work. 

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Note:  If you're interested in more in this area, look at George Lakoff's newest book, The Political Mind:  Why You Can't Understand 21st-Century Politics With An 18th-Century Brain.  You'll learn among other things that each of us is "biconceptual" -- liberal and conservative, uptight and relaxed, prejudiced and open, at the same time.  The most skilled political marketers, Lakoff argues, can "activate" the best or worst in us by invoking particular images and themes.

(Image by Anne Norman at http://www.flickr.com/photos/29278394@N00/2586753767/; license details there.  Anne Norman's blog is subversive suburban.)

Update: Scrushy "Juror E-mails" Forged?

Remember how the corruption conviction of HealthSouth's Richard Scrushy and former Alabama governor Richard Siegelman was called into question when it looked like the jurors were researching the case on line and E-mailing their findings to each other?  Sure you do; I wrote about it here, a year ago tomorrow.  One of the E-mails went:

....judge really helping w/jurors...
still having difficulties with #30
...any ideas???
keep pushing on ur side
did not understand ur thoughts on statute
but received links.

This is the rat, that ate the malt . . .

Or I should say "purportedly went," because the government is now saying that the E-mails are fakes.  Or I should say "now saying they previously determined the E-mails were fakes," because -- man, this is complicated.  Even tracking the cast of characters is complicated, long before you get to the substance of this story.  Listen to the Birmingham News try to explain it:

According to the new information from the Justice Department, at least five co-workers of the two jurors in question received in the mail from unknown sources paper copies of what appeared to be e-mails between the jurors.  Those co-workers notified the two jurors, who then notified the Marshals Service. The Marshals Service notified the lead prosecutor in the case, who asked the postal inspector to determine who mailed the copies to the jurors' co-workers. The prosecutor then transferred oversight of the e-mail investigation to another lawyer in his office not involved in the Siegelman-Scrushy prosecution.

Who lived in the house that Jack built.  Wait, that's not it.  What I mean is that the postal inspector decided last spring that the E-mails were fakes, and told the trial judge at the time, but no one told defense counsel until now.  The Birmingham News again:

An investigation by a postal inspector found the e-mails purportedly exchanged by jurors during former Gov. Don Siegelman's 2006 criminal trial were forged, but the results of that investigation were shared with the judge and not the defense attorneys, according to the U.S. Justice Department.

In a letter to the defense team earlier this month, a top official in the appellate division of the Justice Department disclosed that a representative of the U.S. Marshals Service told the judge about the postal inspectors' findings in April 2007, a time when the prosecution and defense were arguing over whether the e-mails improperly influenced jury deliberations and warranted a retrial.

The Justice Department on July 8 sent the new information to the attorneys for Siegelman and co-defendant Richard Scrushy "out of an abundance of caution" and said it did not change the government's opinion that a new trial was unnecessary, according to the agency's letter.

Now the late disclosure itself is a defense argument, and the case goes on.  In particular, Siegelman, a Democrat, claims the whole prosecution was politically motivated.  TalkLeft is covering that aspect of things, for example this post today. 

(Photo of a very cute rat by Phil at http://www.flickr.com/photos/asplosh/544454437/; license details there.)

What Is The Sound Of One Juror Clapping?

How do you know the trial isn't going well?  When a juror applauds your opponent's closing rebuttal, that's a pretty good clue.

The California Court of Appeal described the scene:

During his rebuttal argument, respondent's trial counsel argued that appellant's witnesses were lying about many issues, including the reason it lost the new account.  Then counsel read to the jury the standard instruction that, " 'if you decide that that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said.' "  At that point, Juror No.2 applauded by clapping her hands.  Respondent's counsel continued his argument without commenting on the juror's applause.

"This must have left appellant's counsel with a sinking feeling," the court noted, with admirable empathy.

The trial judge did the smart thing and quizzed the jurors, each separately.  (As we've discussed, whether juror glitches lead to reversal often depends on how well the trial judge did "the ask.")  Nothing much turned up:

When questioned about it, Juror No. 2 explained, "I was pleased with the statement that was read whereas if it was proved that somebody lied on the stand that all of their testimony could be dismissed."  Each of the remaining jurors remembered the incident; no one stated that it would impact their impartiality.  Jurors found the applause odd, embarrassing or an expression of stress.  None could recall the statement that prompted or immediately preceded the clapping.

So the trial judge let the jury finish the trial, and refused a new trial even after another juror signed an affidavit saying No. 2 was "physically confrontation [sic], putting her face very close to me, speaking very loudly and pounding on the table," and that she had "referred to her own expertise in accounting to support her arguments to the jurors."

The Court of Appeal had no trouble upholding all of this, ticking off the applause, the pushiness, and the claim to higher accounting knowledge as just part of an imperfect world:

"The jury system is fundamentally human, which is both a strength and a weakness. . . .  Jurors are not automatons.  They are imbued with human frailities as well as virtues.  If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias.  To demand theoretical perfection from every juror during the course of a trial is unrealistic." 

The case is Bandana Trading Co., Inc., v. Quality Infusion Care, Inc., decided yesterday.  It's noted also at California Appellate Law Blog.  That last quote is from In re Carpenter (1995) 9 Cal.4th 634.

(Photo by Kevin Flanagan at http://flickr.com/photos/kevflanagan/364568552/; license details there.)

What Can A Mock Trial Tell You?

That's the title TRIAL Magazine gave to my article in their July 2008 issue.  That link is to a .pdf copy uploaded here, so you don't need to be an AAJ member to read it.  (In fact that's the only way I can read it myself; I do too much defense work to be allowed in AAJ.  TRIAL's generosity in letting me post it is just one reason why it's a terrific magazine to write for, and to read if you can get a copy.)

The article actually begins with what a mock trial can't tell you, before turning to why they're invaluable anyway, and a few tips on how to plan a simple, useful mock trial.  I'm a believer, and in the article I try to explain why. 

Your Client, The Jury, And You

One of my law partners was called for jury duty awhile back.  He returned with a striking story, a sort of Tale Of Two Lawyers.  Defense counsel, he reported, sat with his client at counsel table during voir dire.  But plaintiff's counsel sat alone; his clients had to watch from the gallery.  Even my experienced friend, who could list twenty reasons why a lawyer might or might not want to have the client at his elbow during voir dire, couldn't miss the message:  defense counsel liked his client, and plaintiff's counsel didn't.

I was reminded of the story this week when Capital Defense Weekly listed new scholarship related to the death penalty.  The list included a Howard Law Journal article with what sounded like an impossible title: "Death Without Due Consideration?: Overcoming Barriers to Mitigation Evidence By 'Warming' Capital Jurors To the Accused," by H. Mitchell Caldwell & Thomas W. Brewer. (I can't find a free stand-alone copy of the article, but the entire issue of the Howard Law Journal, including this article, is in pdf here.) 

My client, my friend

How do you "warm" jurors to the defendant in a horrific murder case?  Caldwell and Brewer, expanding on Brewer's earlier analysis of data from the Capital Jury Project, suggest one thing above all others:  treat your client with warmth and respect. 

When they searched the data for reasons why some jurors were receptive to "mitigating" evidence supporting a mere life sentence, Caldwell and Brewer say, "[t]he primary explanatory variable . . . was the jurors’ perceptions of the attorney client relationship."  "A significant sampling of capital jurors," they go on, "reveals that jurors are more receptive to mitigation evidence when they view the relationship between the attorney and client as 'warm and friendly.'"  But it's easy to appear too close:  "Ironically, that same study of capital jurors revealed that they became less receptive [to mitigating evidence] if they perceived that the attorney and client worked too closely together."  The Howard article puts this conclusion in context, and suggests several practical ways to help the jury get to know an accused client.

Civil trials too

Civil as well as criminal lawyers need to learn from this, as my colleague's story shows.  Of course you should be treating your client with warmth long before the jury ever walks in; that's your client, for heaven's sake.  But your public relationship has an extra dimension -- as important or more, this research suggests, than the opening, closing, and cross-examinations you worked so hard on.  In every case, from a slip-and-fall to a corporate contract dispute to a death penalty trial, the jury wants to know what treatment your client deserves.  They take the answer in part from the one person who is interacting with your client from the first to last moment of the trial.  That's you.

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Source note:  Prof. Brewer has two related articles, including his 2003 Ph.D. dissertation that first worked with the lawyer/client relationship data, on SSRN here. 

(Photo by Michael K. Dorsey at http://flickr.com/photos/thechairman/247088786/; license details there.)

"Stop Thinking Like A Lawyer!"

"Most of your most cherished beliefs about juries are wrong."

So begins jury consultant Patricia Steele of Varinsky Associates in her article "To Deal Better With Juries, Stop Thinking Like A Lawyer!"  She should know about lawyers' mistaken assumptions, she explains, because she was a lawyer.  "[A]fter hundreds of hours debriefing actual jurors and watching mock juries deliberate," she says, "I now know that a great deal of [lawyers'] accepted wisdom about jury psychology is completely baseless."

I think she's right, but judge for yourself.  Start in any of these places:

• "Lawyers are skilled at many things,but understanding and connecting to jurors is generally not one of them. This shouldn’t be a surprise when you consider that most lawyers actually have no frame of reference. In the first place, they rarely see juries in action. The vast majority of civil cases settle before trial, and few litigators ever serve on juries or watch mock jurors deliberate. In addition, lawyers typically have little in common, either socially or economically, with the average juror."
• "For generations lawyers have told each other that the jury’s opinion of the lawyer is important to their decision in the case. Trial lawyers think that what they wear and how charming they are influences jurors. They think they can dazzle juries with their eloquence. This is a huge misconception."
• "Another area that’s rife with legal folklore is jury selection. Many lawyers judge prospective jurors using outmoded stereotypes, reflecting an overly simplistic view."
• "A good voir dire is designed to elicit information that helps you to see the jurors as individuals. This sounds obvious, but many lawyers don’t seem to get it. Instead, they use this valuable opportunity to try and educate or condition jurors. This is largely a waste of time."

Don't argue with any of this until you hear her explain why.

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Note:  Patricia's article was first published in Defense Comment, the publication of the Association of Defense Counsel of Northern California and Nevada, and it is made available here by their kind permission and hers.

(Photo by Michael Glasgow at http://flickr.com/photos/glasgows/85752623/; license details there.)