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Monday, October 22, 2007

Holdout Juror Locks himself in bathroom to avoid deliberating

So, it's come to this, has it?

Fifty-year-old Ismael Nieves was on trial (for the second time) for failing to register as a sex offender, following a conviction for raping two girls in the early 1980s. The jury in the case had been deliberating for a couple of days when one juror left the jury room for a bathroom break. 

He never came back.

The other jurors found him locked in the bathroom, refusing to come out because he did not want to continue deliberating. It seems that the jury was split 11-1 for conviction and the lone holdout didn't want to talk about it any more. So, he took his vote and went home -- after a fashion.

Superior Court Judge Mary-Lou Rup had no choice but to declare a mistrial. When the jury returned to the courtroom to be officially dismissed, only one juror was smiling. Guess who...

This case provides a nice example of why I think the unanimity requirement is so misguided. We know that many juries eventually split 11-1 or 10-2 (almost always in favor of conviction in criminal cases, because prosecutors only choose to try strong cases). Such a split results in one or more of the following:

1) The majority badgers the holdouts. Since the lone juror (or pair) have no chance of convincing all the other jurors to switch their votes (Henry Fonda notwithstanding), the only question is whether they will cave. This third-degree can contain everything from "Don't you want to go home and see your family?" to "Don't be such a stupid idiot!" The "deliberations" can go on a long time, but this isn't what Blackstone had in mind when extolling the virtues of the American jury. Remember that not all deliberation is good deliberation.

2) The holdouts just give in. It might take an hour, it might take a week, but most of them do. So, a juror is voting guilty even though she is not convinced beyond a reasonable doubt. The empirical studies I have examined on the subject seem to support my suspicion is many, if not most, "unanimous" criminal verdicts are not actually the result of unanimous consensus among the jurors. That is, the "legitimacy" of criminal verdicts that supposedly flows from the unanimous voice of the jury is a sham.

3) The jury compromises. Tired of trying to get the holdouts to "see reason," a deal is struck. Everyone agrees to convict the defendant of only some of the charges, or of a lesser included offense. Maybe the jury agrees to convict one codefendant but not the other. This "justice" can result in a verdict that is accepted by all the jurors, but supported by none of them. The Supreme Court has declared that compromise verdicts are contrary to the law but a necessary concession to the functioning of the criminal jury system.

4) The jury hangs. This results in possibly a deal with the defendant where he pleads guilty to a lesser charge (see compromise above) or possibly a retrial. A retrial costs everyone a lot of unnecessary time and money. Meanwhile, the defendant is usually stuck behind bars awaiting a new trial. Suppose the the defendant is subsequently convicted. While the second jury might be unanimous, it is still true that at least one juror who heard his case was not convinced of his guilt beyond a reasonable doubt. So, how legitimate is such a verdict? Again, unanimity is an illusion. Perhaps the first jury hung because it was a hard case. Maybe we should be happy that they couldn't all agree. There is no reason to believe that the jury that reached a unanimous verdict (but perhaps not real consensus) was any more representative of the population, was any more attentive to the facts, deliberated any more conscientiously or voted any more sincerely than the jury that hung. All we know about them was that they all voted the same way. 

I have written at length elsewhere about my views on the unanimity requirement. See Edward P. Schwartz and Warren F. Schwartz, "And So Say Some of Us... What to do when Jurors Disagree," (9 S. Cal. Interdisc. Law Jnl. 429, 2000). I won't belabor the point here, but allow me to briefly outline a few items that few people ever consider on the subject.

1) Oregon (10-2) and Louisiana (9-3) have long had non-unanimous verdicts in criminal cases and there is no evidence that their juries get verdicts "wrong" any more often than juries in other states. There have been no riots in the streets of Portland or Baton Rouge over non-unanimous convictions. Based on a study from the 1990s, the hung jury rate in Oregon was roughly 1/30th that of California (0.5% versus 15%).

2) England, from whom we inherited the common law, adversarial trial system, did away with the unanimity requirement decades ago. No riots in London, either (except in songs by The Clash). Most of the states of Australia use some form of qualified majority now, too. All of the European countries that use some form of lay jurors require something other than unanimity for conviction (usually something between simple majority and two-thirds).

3) Eliminating unanimity would allow us to also eliminate peremptory challenges, which let lawyers strike a certain number of jurors for any reason they choose (except ostensibly for race or gender, but don't get me started on that one!). If no one juror can unilaterally veto a verdict, it won't be critical to eliminate from the jury people with extreme (but not illegitimate) views. As such, jury deliberations can be more inclusive, more complete, and more open. I sincerely believe that it is better to let a person with unpopular views sit on a jury, speak her piece and probably get outvoted than to prevent her from ever sitting on a jury at all.

Well, I have already gone on too long for a blog entry. As you can tell, this is a topic about which I have thought a lot and I deeply care about the right answer. Perhaps a post on the internet can spur the lively debate that my academic writing never did!

Tuesday, October 16, 2007

Social Scientists Left Out of MacArthur Effort on Law and Neuroscience

The MacArthur Foundation recently awarded $10 million over three years to "The Law and Neuroscience Project," hosted at the University of California at Santa Barbara. The project will be pursued by three "research networks." I am not qualified to speak to the organization and personnel of the first two, "Diminished Brains" and "Addiction and Antisocial Behavior," but I do know quite a bit about the final research topic, "Decision-making by criminals, judges and juries."
The network on decision-making is currently comprised of noted neuroscientists, lawyers and judges. I have no doubt that all of these folks will have much to contribute to the discussion. What I am at a loss to comprehend is why there are no psychologists, sociologists, political scientists or economists on this team, given that these social scientists have contributed virtually everything we have learned over the past century about criminal, judicial and juridical behavior.
How can you study judicial behavior without including Lee Epstein, Jeff Segal or Pablo Spiller? How can you investigate decision-making by jurors without consulting Valerie Hans, Reid Hastie or Ted Eisenberg? It seems foolhardy to explore the contours of criminal conduct without input from Steve Levitt, Michael Block or John Donohue.
I was a full-time academic not-so-long ago. My two major research programs involved studying (1) judicial decision-making and coalition formation, and (2) the relationship between procedural rules and jury decision-making. I didn't have to dig deep into my archives of working papers to identify the names listed above. I know each of these people personally. The point is not to highlight how many drinking buddies I had at academic conferences, but rather how easy it was to pull up a bunch of names of imminently qualified social scientists who could make major contributions to this research effort.
I am delighted that the MacArthur foundation has sponsored such a fascinating and important research project. I only hope that the project directors don't try to reinvent the wheel -- or worse, ignore its existence altogether.

Thursday, October 11, 2007

MySpace is a well-stocked arsenal for trial lawyers

MySpace is a well-stocked arsenal for trial lawyers
By Edward P. Schwartz
October 8, 2007

While your fourteen year old daughter might have known about MySpace and Facebook like forever, trial lawyers have only recently begun to realize the amount and variety of ammunition that may be waiting for them on these social networking sites.
Whether defending an assault case, trying to force a settlement in a med-mal case or trying to find the inside scoop on prospective jurors, social networking sites such as MySpace and Facebook have become a valuable resource that should be a standard part of any trial lawyer’s pre-trial research.
Consider the following examples:

• The Santa Barbara, Calif., district attorney secured a more severe penalty against a young woman who pleaded guilty to vehicular homicide, when he produced photographs from her MySpace profile of the woman binge drinking and partying with friends. Instead of probation, the woman was sentenced to two years in prison.

• Pima County, Ariz., prosecutor Jonathan Mosher forced a man to plead guilty to aggravated assault with a deadly weapon when he produced a picture from the defendant’s MySpace profile of him brandishing the same kind of gun used to hold up the victim.

• A Pensacola, Fla., defense attorney supported a client’s contentions that he had cut off contact with his former girlfriend, as ordered, by finding messages that the woman had posted to him on her MySpace page, contradicting her claims of continued harassment.

• Leo Thomas, attorney for Brandon Ward, a former Marine accused of stabbing to death Joseph Hall, bolstered his client’s self-defense claim by showing the jury Hall’s ultra-violent MySpace profile, “joehallwillkillyourfamily.” The prosecutor in the case, Bobby Elmore, then one-upped the defense by showing the jury a message to Hall from Ward’s girlfriend, inviting Hall to a party she was hosting with Ward, suggesting that Ward couldn’t have been that afraid of Hall.

• Defense attorney D. Jesse Smith secured an acquittal for a client accused of assault after showing the jury videos from the alleged victim’s MySpace page of him beating up various other people.

Blogs are similar to social networking sites, in that a blogger has free rein to express views, create links and post photos and videos on his site.
One Massachusetts pediatrician, blogging under the name “Flea,” used his blog to vent about his ongoing medical malpractice trial. He had several derogatory things to say about the plaintiffs, opposing counsel, the judge and even the jurors. When the plaintiffs’ attorney confronted him with his own blog on cross-examination, the doctor’s insurance company immediately settled the case.
The lesson from these examples is to investigate the web presence of everyone involved with your next trial. But this is easier said than done, since many Facebook and MySpace users use anonymous user IDs and many blog entries are made under pseudonyms.
As such, you will likely learn little by just searching these sites for the name of a witness or juror. You will need to get prospective jurors, witnesses, plaintiffs and defendants to provide you with the information themselves.
Given the potentially embarrassing nature of information posted on such sites, few jurors will volunteer such information during voir dire in open court. As I have discussed in earlier columns, people tend to be more forthcoming with sensitive information when asked in writing. As such, I recommend that you include a couple of questions about blogs and social networking sites on a supplemental juror questionnaire. It may then be possible to learn more about a juror’s web presence during individual voir dire, provided that it is conducted in private.
However, it is also important to recognize that people develop a web persona for a variety of reasons. There are a handful of common reasons you should be aware of, each requiring its own interpretation of the information you uncover.

• Confessional
For many people, these sites are a means of self-expression. They will openly talk about their recent break-up, overcoming addiction, finding religion or guilt about some wrongdoing. These types of profiles provide deep insight into the character of the person who has posted the material. Untainted by the confines of a jury selection, these testimonials are probably more reliable than the answers you can get during voir dire.

• Aspirational
Some people who are disappointed with their real lives adopt a more impressive personae online. Consider the shy, awkward clerk, living in his parents’ basement, who represents himself as a studly investment banker, driving a hot car.
Others use a site as a means of boasting and inflating whatever persona they have adopted in real life. According to Pima County, Ariz. prosecutor, Joseph Diebolt, “Gang guys love this stuff. They like to make stuff up about themselves – brag about their weapons.”
Also, be aware that the number of “friends” a person accumulates on MySpace is not necessarily an indication of their popularity. The vast majority of these “friendships” are not based on any real closeness or trust, so it is important to realize that a “popular” or “well-connected” person on MySpace could be more of a loner in real life.

• Closeted
This country is still more socially conservative than most developed countries and many people don’t feel comfortable admitting their unconventional behavior in public. Homosexuals, cross-dressers, swingers and practitioners of S & M have found a haven of anonymity on the Internet. To a lesser extent, this is true for anarchists, communists and Neo-Nazis.
Suppose you discover that one of your jurors is a closeted homosexual, with a profile on a gay dating site. How is this likely to affect his decision-making as a juror? Remember that a jury room is a fairly public forum. While the deliberations may never be revealed to the general public, it is difficult to imagine a closeted juror speaking out in favor of gay rights to a group of strangers from his own community.
In addition, people who are “living a lie” may experience self-loathing to a degree that they are unsympathetic to others facing similar issues. Such jurors are most likely to strive to push their public personae during jury deliberations. Do any of us really think that evangelical preacher Ted Haggard or Idaho Sen. Larry Craig would exhibit any sympathy for a gay man during jury deliberations? The primary use one could make of a juror’s closeted status is to get him struck from the jury for cause.

• Role playing
Believe it or not, many people pretend online to be someone completely different from who they are. Approximately 30 percent of female profiles on Internet dating sites are actually posted by men, while 20 percent of postings to single dating sites are from people who are actually married.
It is also common for people to post entries under the name of someone else in order to embarrass them. So, as you examine a MySpace or Facebook page, make sure to confirm that it was posted by the person you think. If a person is willing to blatantly lie online, it might say something about his willingness to do so in other circumstances, as well.

• Attention grabbers
Some people see social networking sites as a way to get noticed. The more outrageous a person’s online persona, the more attention he or she gets. This seems particularly relevant for the 25-and-under crowd. As such, kids probably post only the most ridiculous parts of their lives. If a college student posts a picture of himself writing his name in the snow after a frat party, does that mean that he’s a perpetual binge drinker with no respect for society? Not necessarily.
While profiles on social networking sites can raise red flags about a potential juror’s character, it is important to follow up with targeted voir dire to find out what the person is really like. While it is possible that kids today do more stupid things than kids of yesteryear, it is more likely that they just document them better.

Be Proactive
The value of social networking and blogging sites as sources of juror information is only now coming to the attention of jury consultants, as evidenced by a recent thread on the subject on the listserve of the American Society of Trial Consultants. So, take the initiative and ask your jury consultant about digging into the web-lives of your jury pool -- you never know when "killalldalawyers4eva" will be staring at you from the jury box.

"The Shadow Knows": Shadow jurors can help lawyers adapt on the fly

"The Shadow knows"
Shadow jurors can help lawyers adapt on the fly
By Edward P. Schwartz
July 16, 2007 –
It is the sixth day of trial and the mechanical engineer is droning on about
shopping cart construction. You can't keep your mind from wandering - and
he's your witness. As you scan the courtroom, your patented "sincere,
competent and friendly" smile expertly cemented on your face, you notice
for the first time just how many people are watching this completely
unremarkable premises liability case. Even more surprising, they actually
seem to be paying attention. Who are they? They don't look like folks on a
day pass from the state hospital next door. They're too old to be a ninth
grade civics class on a field trip. Not even the local rag of a newspaper
would be desperate enough to cover this case.
You don't need Rod Serling to explain this particular phenomenon. These
members of the gallery are probably shadow jurors, hired by your opponent
to watch the trial and provide feedback about how things are going. "Wow!"
you think, "The defense is really pulling out the stops."
Not necessarily. In truth, using shadow jurors can be a very economical
way to get valuable information on your next trial.
There are several ways to make effective use of shadow jurors. Some of
them can be used in conjunction, while others require the litigator to make
a strategic choice before the trial begins.
Handy-dandy focus group
Imagine having access to an up-to-date focus group at any point during the
If you use shadow jurors, you can debrief them at any point in the
proceedings. You don't need to prepare any presentation materials since
they have been watching the whole trial. As with conventional focus
groups, it is best to zero in on one particular theme or piece of testimony -
"Did you understand the explanation of how a CT scan works?" or "Do you
think the plaintiff was being completely truthful in her testimony?"
While an attorney can conduct these sessions, it is preferable to get a
professional moderator to do so. If the shadow jurors are talking to the
person who is paying them, they may be tempted to report what they think
the lawyer wants to hear. This problem is only exacerbated if the shadow
jurors develop a rapport with the attorney over the course of the trial.
Finally, if the shadow jurors start to feel like part of the trial team, they
might cease to be objective evaluators of how a real jury would see the
case. It is critical to get honest, objective, unbiased opinions from your
shadow jurors.
Regular focus groups quickly turn your shadow jurors into a shadow jury.
You might want to solicit their individual opinions throughout the trial, free
from the influences of the other shadow jurors. There are several ways to
pursue this strategy and still get good data.
One possibility is to give your shadow jurors dial testers. These are little
hand-held controllers that look like pong paddles. As the shadow jurors
watch the trial, they turn their dials from "cold" to "hot" depending on how
they feel about what is happening in the courtroom. In addition, it is
possible periodically to prompt the shadow jurors with particular questions
that they answer using their dials. The results can be monitored by a
member of the trial team in real time, and new questions can be introduced
whenever they come to mind.
There are now several companies that provide dial testing hardware, data
collection and analysis, including:

They are all experienced at working with attorneys and trial consultants to
configure their systems to the needs of particular cases.

Limitations of dial testing
Dial testing does have its limitations, however. You will probably need to
find a way to broadcast the trial to a remote location where your shadow
jurors will be free to twist away. The controllers are wireless, so they can
be used in a courtroom, with the technician and responsible trial team
member squirreled away nearby. But it may be difficult to convince a trial
judge to let your shadow jurors sit in the courtroom with their controllers.
I recently asked Nancy Gertner, a U.S. District Court Judge in
Massachusetts and a courtroom technology advocate, whether she would
allow shadow jurors to use dial testers in her courtroom. To my surprise,
she replied, "I wouldn't have a problem with them so long as they and the
'dial testers' are inconspicuous and the 'real' jury wouldn't know that they
are being 'shadowed.'"
When requesting permission to use dial testers, I recommend that you
demonstrate for the judge how inconspicuous they can be. Coach your
shadow jurors on how to keep the dial testers in their laps while using
While it's possible to work with shadow jurors who are not in the courtroom
you lose the realism of watching a trial live, where they can watch
reactions and body language in addition to hearing the testimony itself.
Another concern is that this technology doesn't come cheap. Expect to
pay at least $3,000 per day plus expenses for the equipment rental, the
staff to run it and the resulting data analysis.
You can accomplish many of the same goals with a distinctly low-tech
approach. A trial consultant can hand out short questionnaires to your
shadow jurors during breaks and debrief them individually at the end of
each day. This approach requires a bit of extra manpower, since one
person won't be able to interview every shadow juror in the same evening.
One good question to ask every day is "Are there any questions you wish
someone had asked of a witness?" This information is particularly valuable
in jurisdictions that do not allow jurors to submit questions to witnesses.
A few refinements
One advantage of keeping shadow jurors apart during trial is to track trends
in attitudes and opinions. If a shadow juror starts to warm up to the
defense case, it is nice to know whether the change is the result of
evidence and testimony, as opposed to the influence of other shadow
Such isolation also allows you to ask the shadow jurors to deliberate as a
jury at the end of the trial. While you can have a shadow deliberation in
any event, if the shadow jurors have been regularly sharing their views
throughout the trial, such deliberation is unlikely to mimic what the real
jury is going through.
What should you make of your shadow jurors' responses?
Even though the shadow jurors are watching the actual trial (unlike mock
jurors or focus group participants, who typically watch an abbreviated
presentation), their responses should still be interpreted as suggestive,
rather than predictive. Shadow jurors are very useful for learning about what
themes have been important, which witnesses have been credible and
which information has been internalized by the actual jurors.
That said, how such matters get transformed into a verdict choice is often
the result of idiosyncratic features of individual mental processes and
collective deliberation dynamics. Your shadow jurors can improve the
accuracy of your evaluation of how the case is going, but they can't tell
you for sure what the actual jury is going to decide.
Suppose your shadow jurors are reacting negatively to your case. That
doesn't automatically require a dramatic change in your approach. You
should be careful to interpret shadow juror responses in conjunction with
the results of your pretrial research, your trial consultant's evaluation of the
case and your own experience with similar trials. You should huddle with
your entire trial team before resorting to Plan B.
Plan B and how to use it
It is often difficult to change tactics in the middle of a trial. It is a good idea
to have contingency plans laid out in advance, anticipating that you will be
receiving regular feedback from your shadow jurors. This will allow you to
smooth out any necessary strategic transition.
Suppose you anticipate that you might need to become more aggressive in
your cross-examination of a particular witness. You should script out both
versions of your questions in advance and plan a transition from one to the
other that won't be too jarring to the jury.
A final note about shadow jurors. You should discuss this option with your
trial consultant well in advance of trial. It takes some time to recruit a
representative group of shadow jurors who are free to spend several days in
a row in court (not to mention the debriefing sessions). In addition, you will
want to put a lot of thought into the techniques that your trial consultant
will employ and the types of questions she will ask. You will be busy
enough during the trial - you don't need to be drafting multiple-choice
survey questions and scheduling conference rooms. So, if you think you
might want to use shadow jurors, get the ball rolling early - it's much easier
to dismiss shadow jurors you don't need than to find decent ones at the
last minute.

Edward P. Schwartz is a trial consultant based in Lexington, Mass. He
also teaches a course in jury trials at the Boston University School of Law.
His website is
© 2007 Lawyers Weekly Inc., All Rights Reserved.

A Chance to Improve Your Game: The Value of post-verdict juror interviews

A chance to improve your game
The value of post-verdict juror interviews
By Edward Schwartz
April 19, 2007

Although the most important work an attorney performs takes place before and
during the trial, litigators have an important opportunity to learn about their effectiveness
after the trial is over. Did the themes you chose to emphasize resonate with the jury? Did
the jurors find your witnesses credible? Did they understand the technical information
that was critical to your case? What can you do better next time?
The best way to answer these questions is to conduct post-verdict interviews with
jurors, a practice that is currently allowed in about a third of the federal courts and a
significant percentage of state courts.
The post-verdict interview responses will be most useful to a firm in the long run
if they can be aggregated and compared across cases over time. To this end, I would
recommend that your firm’s litigators jointly develop a standard set of interview
questions, as well as descriptive characteristics of the cases that will be kept on file. It
will, of course, be necessary to amend these standard questions with case-specific ones,
but uniformity in structure and response type (sliding scales, multiple choice, short
answer) is helpful.
The jurors’ verbal responses will likely be helpful for an immediate “post-
mortem” of your case, but they will be hard to compare and generalize down the road. As
such, it is important to develop a coding scheme for storing the data in a way that will
permit statistical analysis in the future. One example of such a system is to develop a list
of possible influences on the jury (opening arguments, exhibits, expert testimony, etc.)
and record how often each is mentioned by jurors in their responses. Another strategy is
to record how often certain “buzzwords” come up during the interviews (believable,
aggressive, nice, defensive, etc.)

While it might be most convenient for you to assemble the jury immediately after
the verdict to conduct interviews, this is rarely the best approach.
First, jurors are often eager to return to their families and jobs. They won’t be
most forthcoming with their time when they have already been away from their normal
lives for weeks. Second, it is wise to take a few days after the trial to decompress and
figure out what you really hope to learn. If you lost at trial, this also gives you some time
to cool down. Don’t chase jurors down the hallway after the verdict is read.
Finally, juror interviews are usually most illuminating when conducted
individually, rather than in a group setting. If a juror is uncomfortable with something
that happened in the jury room, she may be unwilling to share those feelings with the
others jurors present.
A good strategy is to let a few days go by before first contacting the jurors. Try to
schedule the actual interview within a couple of weeks of trial so the experience is still
fresh in the jurors’ minds. If possible, ask the judge to inform the jurors before dismissing
them that someone might be contacting them to discuss the case.
Most jurors are happy to discuss their experiences, provided that they are
approached in a respectful way. Be accommodating to the jurors’ schedules, keep the
interview short and tell them in advance how long it is likely to take. Make sure you
provide them with an opportunity to discuss their concerns, even if they don’t relate
directly to what you want to learn about the case.
In her initial instructions to the jury, the judge has undoubtedly emphasized the
enormous responsibility of jury service and expressed the court’s appreciation for the
jurors’ efforts. You should leverage this idea in speaking with jurors. You are providing
them with the opportunity to voice their opinions about the experience of serving on a

There are a few different ways to conduct post-verdict research.
The simplest and cheapest method is to ask jurors to complete a written
questionnaire. There is actually a lot to be said for a questionnaire if you want both
candor and easily coded results. It is difficult, however, to read nuance into a written
questionnaire and you can’t learn anything about topics you didn’t think to ask about.
A telephone interview allows for a somewhat more organic experience. Some
people feel more comfortable with the anonymity of a telephone call, as opposed to a
face-to-face interview. But it’s hard for an interviewer to read emotion or attitude into a
phone interview, so it might be difficult to know when to follow up. Many people are
only willing to talk on the phone for so long. They become tired, bored or distracted. As a
result, it might be preferable to conduct an interview in person. An interviewer can
develop a rapport with a subject if they meet in person. As trust grows, a juror can
become more expansive with her answers, increasing the yield of the interview.
In-person interviews can be conducted either in groups or individually. A group
interview feels a lot like a focus group session. One concern is the willingness of jurors to
be totally candid about deliberations in each other’s company. On the other hand, the
group discussion that sometimes develops can provide insights into the group dynamics
of the actual jury deliberations. If certain jurors speak up to answer most of the
researchers’ questions, those jurors probably dominated deliberations as well.
The final method of conducting post-verdict interviews is to meet with each juror
individually. This method provides the greatest flexibility in formulating questions and
adjusting the interview focus on the fly. Individual sessions also obviate the need to
reassemble the entire jury at the same time. On the other hand, this method can be quite
expensive, as many person hours are needed to conduct the actual interviews. This is
probably the method most likely to yield “secrets” about the jury deliberations. That is, a
juror is most likely to confide in the interviewer in the context of a private face-to-face

Who should do it?
The final question to be resolved is whether you should conduct the interviews
yourself or hire a consultant to do it. A large firm might find it cost-effective to develop
and administer interviews in-house, but most attorneys would benefit from hiring a trial
consulting firm to design, administer, code and analyze post-verdict interviews.
The less a lawyer is interested in the long-term value of the data collected (caring
only about what worked and didn’t in the present case), the more of this preparation and
analysis she can perform herself. Jurors might be reluctant to make negative comments
about trial strategy or presentation style if the trial attorney is conducting the interview
herself. If you are uncomfortable with the expense of hiring a consultant to conduct your
post-verdict interviews, you might consider asking another attorney in your firm to
conduct them for you.

Indirect Questions Reap Most Information in Oral Voir Dire

Indirect Questions Reap Most Information in
Oral Voir Dire
By Edward P. Schwartz
October 9, 2006
In my last column, I discussed many of the advantages of using a
supplemental juror questionnaire as part of jury selection – the primary
advantage being that jurors tend to be more truthful in their responses on a
written form than they are when questioned orally in open court.
But the written form – at least in courts that allow traditional voir dire – should
only be seen as a supplement to oral questioning conducted in both a group and
an individualized setting.
Group voir dire
By necessity, group voir dire questions are typically framed as “yes or no”
inquiries. Jurors are asked to raise their hands if they answer any question in the
affirmative. Each party notes who raised a hand in response to each question
and then follows up with questions either in open court, at sidebar or in the
judge’s chambers, depending on the court’s prevailing practices.
My first word of advice is not to expect to learn very much from group voir
dire. The need to ask “yes or no” questions, coupled with the public setting,
conspire to limit how much information you can get from potential jurors. The
studies cited in my last column all reveal that jurors lie during group voir dire – a
lot. Most of these lies stem from an unwillingness to volunteer information about
private and/or sensitive subjects.
My second bit of advice is to treat group voir dire as an entrée into
individualized voir dire. The more often a juror raises her hand, the more
individual questions she will have to answer. Since these follow-up questions are
where the action is, craft your group voir dire questions in a way that prompts as
many people to respond as possible. Instead of asking whether “you or a loved-
one has ever been a party in a law suit,” ask whether “you know anyone who has
participated in a lawsuit.” Many panel members will construe a question as
narrowly as possible in order to avoid raising their hand and setting themselves
up for additional questions.
Ask each juror whether he or she has ever been in a courthouse before.
Almost everyone has been at some point or another. Whether it concerns traffic
court, small claims court or family court, you should try to learn something about
each juror’s experience with the legal system.
Try to keep your list of group voir dire questions short. The jurors don’t want
to raise their hands anyway. The longer the process lasts, the less inclined
anyone will be to volunteer information.
I recently consulted on a trial for which the group voir dire lasted 11⁄2 hours.
For the last 10 minutes, not a single juror raised his or her hand. Fortunately, the
questions from my team had been asked at the beginning.
Some jurors are forthcoming, while others won’t raise their hands unless they
absolutely have to. These jurors can slip through voir dire because questions are
almost always phrased so that it is the jurors who raise their hands who are
asked additional questions. To avoid this, I recommend that you phrase some of
your questions so that it is the jurors who don’t raise their hands who are subject
to individualized voir dire. So instead of asking, “Who has a relative who works in
the health field?,” ask “Who doesn’t have a relative who works in the health
field?” Even if the voir dire will be conducted entirely by the judge, try requesting
that the judge mix it up in this way.
Finally, it is a complete waste of time to ask jurors directly whether there is
anything that would prevent them from being impartial in the case. Most people
who answer affirmatively are just trying to get out of jury duty. The people whose
biases are really a source of concern are rarely self-aware enough to recognize
the problem. Finally, such questions are usually so poorly worded, and cluttered
with negatives and dependant clauses, that jurors can’t decipher them in time to
volunteer a response.
Individual voir dire
A good question in a written juror questionnaire typically does not make a
good voir dire question. The main reason is that while people hate to write, they
love to talk. An open-ended question on a written questionnaire is an invitation to
leave a blank space. As I discuss in my last column, multiple-choice and sliding-
scale questions are preferable on a written form.
But in oral voir dire, open-ended questions provide an opportunity for jurors to
tell you who they really are. The goal is to get potential jurors to want to tell you
about themselves in their own words.
Don’t ask leading or challenging questions. If you try to put words in jurors’
mouths, they will either repeat them back to you or clam up, depending on
whether they like what you are saying on their behalf. So, if you ask a juror what
she thinks about the “torts crisis” in America, she will either tell you that she
thinks it is a “crisis” or that she doesn’t have much of an opinion about it. Such a
question will not get her to tell you about her own experience (or those of her
friends and family) with the civil justice system, which is what you really want to
learn about.
Instead, ask the juror about the most interesting court case she has ever
heard about. What case she chooses, along with her take on the outcome, will be
much more informative than some canned response about “fairness” or “justice.”
Prospective jurors will instinctively try to figure out why a lawyer is asking a
particular question. The more sensitive the topic – and the more the question
reflects the fundamental controversy of the case – the more likely a juror is to try
to “game” the process. One way to avoid this is to ask jurors to tell stories about
themselves, as I mention above. Another is to ask questions about topics that
proxy well for what you are really interested in.
For example, I recently worked on a case involving the purchase of a firearm
by someone who was mentally ill. We wanted to learn whether jurors were
sensitive to the plight of people facing mental challenges and whether they
believed society is responsible for keeping such people safe.
To get at these attitudes, we asked a very open-ended question about each
juror’s recollection of the Columbine tragedy. If a juror did not offer an opinion on
her own about who was responsible, we followed up with a question about the
juror’s initial thoughts about who was to blame.
Some jurors blamed only the shooters. Others expressed frustration with the
parents. A few articulated the position that everyone (parents, school,
government, media, etc.) has a responsibility to look out for the well-being of our
children. The jurors were generally willing to talk about Columbine because it did
not have a direct bearing on our case.
Another ripe area to explore is people’s relations with those close to them.
People love to talk about their children. Rather than ask prospective jurors about
religious preferences, ask where their kids go to school. To get a sense of how a
juror feels about people in different professions, ask what their children want to
be when they grow up. If one answers, “Joey, my 6-year-old, wants to be a
policeman,” you can follow up with, “How do you and your wife feel about that?”
A person whose son is on the debate team or who plays in the orchestra is likely
to have different attitudes than one whose son plays on the football team and has
joined ROTC. A person who is self-conscious about their own life can still be
expansive about her children; use this to your advantage.
There is another advantage to “asking around the topic.” If the other side has
not thought through the voir dire process as thoroughly, the jurors’ responses will
be more useful to you than they will be to your opponents.
Be Prepared for any jury
I have devoted the last two columns to jury selection strategies. I don’t want
you to get the idea, however, that choosing a jury is the only, or even the most
important, opportunity for you to improve your chances of winning at trial. As I
always tell my clients, in terms of impact on verdict choice, who the jurors are is
almost always swamped by what the jurors see. By all means, do all you can to
identify and strike jurors who really will be unfair to your client; but, make sure to
concentrate your energy and resources on presenting your case in its most
favorable light.

July, 2007: The Jury Box Newsletter: Recent Jury Research

Vol. 3, No. 3. July, 2007

Last month, I attended the annual conference of the
American Society of Trial Consultants
in Long Beach, CA. The program was excellent. In particular, there was
a fascinating and important session on ethical dilemmas in trial
consulting. ASTC now has a complete set of ratified
practice standards
. As the
discipline continues to mature, we are wrestling with how to
interpret these standards. I plan to devote a future issue of
The Jury Box to the ethics of trial consulting.

I always look forward to the conference session on new research in
jury behavior and this year’s session did not disappoint. In
this issue, I report on two particularly interesting studies: one on
per diem arguments about damages and the other on how jurors react to
apologies by defendants. This second topic has received a lot of
attention recently. We know that apologies can reduce the likelihood
of a suit being filed and can facilitate settlement, but we know less
about how juries will respond to them at trial.

-- Edward P. Schwartz

Any of you who have attended one of my presentations on jury
decision-making or trial strategies has heard my spiel about my
being, first and foremost, a social scientist. As such, I
believe in data and I look first to empirical studies for guidance
when advising clients. As such, it is important for me to keep up
with mock jury studies as their results are made available. The ASTC
conference is one good place to catch up on such research, but I plan
to include a regularly updated bibliography of jury research on the
new ASTC website. This will help all ASTC member consultants apply
the latest cutting-edge research to all their future trials.

Taking it day by day

Attorneys are often faced with the dilemma of how to present
arguments about non-economic damages to jurors. Most juries are left
to their own devices, creating great anxiety about where to even
begin such calculations. The foreignness of this exercise is the main
reason why ad damnum requests are so influential on damage awards. In
some jurisdictions, attorneys are also permitted to make per diem
arguments about such damages. Where courts have rejected this
practice, the rationale is usually that per diem arguments are likely
to generate excessive damage awards.

Bradley McAuliff, of CalState Northridge, recently conducted
research to test the conjecture that per diem arguments generate
excessive awards. His first study provided subjects with a written
account of an automobile accident torts case, where the plaintiff
suffered non-economic harm in the form of severe back pain and
reduced mobility. Subjects read versions of plaintiff’s closing
arguments with either no per diem argument, or one of three with
identical monetary value ($1/hour, $24/day or $730/month).

As the table below shows, per diem arguments (PDA) actually reduced
the size of average damage awards.

This result is consistent with prior research on the effects of
breaking damage awards into component parts. When jurors are asked to
calculate awards for specific harms and then add them up, the
resulting total damage award is typically smaller than had the jury
just calculated a total award in the first place. While the component
parts are temporal, rather than substantive in McAuliff’s study,
the subjects were still forced to add up smaller amounts to reach a

Notice also that the average award dropped as jurors were asked to
calculate in larger time increments. Supported by subjects’
self-reporting of cognitive effort, the author speculates that many
were overwhelmed by the prospect of calculating damages hour-by-hour
or day-by-day. As a result, many of the subjects in those treatments
essentially gave up on actually calculating the award and picked what
they believed to be an appropriately sized total. By comparison,
multiplying the monthly amount by 12 or 18 is a fairly simple
arithmetic operation.

McAuliff then conducted a follow-up study, in which all jurors heard
a per diem argument and half of them also heard a lump sum ad damnum
request. As the table below clearly illustrates, when jurors had
access to an ad damnum, they quickly abandoned any pretense of
calculating damages from the hourly, daily or monthly figures. Notice
that average awards were virtually identical when an ad damnum was
available, regardless of what kind of per diem argument the subjects
heard. Only in the absence of a lump sum request did the form of the
per diem argument matter.

Contrary to the concerns of courts that have prohibited per diem
arguments, plaintiffs actually did better when per diem arguments
were avoided. Ideally, a plaintiff’s attorney should make a
lump sum request. Where an ad damnum is not permitted,
plaintiff’s counsel is probably better off leaving jurors to
think about damage awards in gross terms, rather than trying to
support a particular outcome with incremental logic. By contrast,
defense counsel would be wise to try to convince the jury to think
about damages in incremental terms. Such a strategy, however, can
backfire if the resulting calculations overly tax the cognitive
abilities (or patience) of the jurors. Where possible, stick to
monthly or annual figures so that the math remains fairly simple.
Better to seek forgiveness than permission?

Given the amount of stonewalling and denial we see in both the
corporate and political arena, one would never guess that a growing
body of research supports the notion that an apology is often the
most effective strategy in response to a mistake. Studies have shown
that an apology can reduce the likelihood that an injured party will
file suit and it can make settlement easier, as well. The concern
among attorneys (and their clients) was that an apology would serve
as an admission of negligence, hampering the defendant’s
efforts at trial.

Kevin Poully studied this very problem in his doctoral thesis at the
University of Kansas, entitled “Mea Culpa in the Courtroom:
Juror Perceptions of Defendant Apology at Trial.” Poully ran a
mock trial study involving a summary of a nursing home negligence
case. All subjects saw exactly the same version of the trial, except
that some saw no apology by the defendant, some saw a partial apology
(in the form of an expression of remorse) and the final group saw the
defendant offer a full apology.

Respondents were then asked to decide whether or not the defendant
was negligent. Contrary to conventional wisdom (or attorneys’
fears) on the topic, an apology had no discernable impact on the
inclination of mock jurors to find the defendant negligent.
Respondents were then asked to calculate damage awards. Again, the
presence of an apology (or its form) had no significant impact on
jurors’ decisions. The average awards (economic, non-economic
and punitive) were essentially the same, regardless of whether the
defendant apologized at trial.

This is one of those cases where a non-result is actually a very
strong result. While an apology was seen to offer no real benefit or
cost with respect to verdict choice, it is important to remember that
past studies did demonstrate the advantages of apology at prior stages
of the litigation process. The lesson to be learned from the present
study is that defendants should feel comfortable apologizing for
other reasons (strategic, ethical, psychological or otherwise),
knowing that an apology is unlikely to affect them adversely at

I know that Dr. Poully is currently working on distilling his
results into articles for publication. I’ll be sure to alert
readers of The Jury box as those articles become publicly available.

In the News

Juror Shortage Hits Boston

Despite ongoing reports of the demise of jury trials, Suffolk
County, MA appears to be running out of jurors. Massachusetts has a
"one day or one trial" policy for jury duty, which quickly cycles
through the eligible jury population. Those who have served cannot be
called again for three years. Massachusetts is also the only state
that relies on an annual town census to create jury rolls. This is a
particularly error-prone process in communities with large student,
transient, poor and/or immigrant populations. As such, Boston has a
rather poor response rate for jury summonses (25%). This shortage
lends additional support to the proposal of State Senator Stanley
Rosenberg (D-Northhampton) to switch from the census method to one
relying on voter registration, welfare rolls and other public

I am curious to see how this juror shortage dovetails with the
expressed willingness of many judges in the Commonwealth to allow
individualized, attorney-conducted voir dire in some cases. Will
these judges reconsider if such voir dire threatens to stretch the
jury pool even thinner? Only time will tell.

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April, 2007: The Jury Box Newsletter: Real Jurors Speak Out

Vol. 3, No. 1. April, 2007

Quick Links

Sticking it to the man
The wrong time to play the race card.
Taking Stock of the Enron Verdict
Libby, Libby, Libby labeled a Liar, Liar Liar

Welcome to the first Jury Box tabloid extravaganza! There’s a
lot of jury related funny business going on in high-profile trials
around the country. We’re going to take a whirlwind tour of the
sleazy, desperate, fraudulent and just plain negligent, as I use the
tawdry details of some recent jury trials to highlight some useful
lessons on trial procedure and strategy. Rather than relying on the
speculation of our usual cast of talking heads, we’re going to
hear from the jurors themselves. What did they think of the process?
Which evidence was most important? Why did they vote as they did?

Once again, I am co-hosting the New England Regional meeting of the
American Society of Trial Consultants , to be
held on the morning of April 20, at Bernett Research
in Boston. Sam Sommers
, a psychology
professor at Tufts University, will give a presentation entitled
“Jury Racial Composition: Surprising Lessons from Experimental
Research.” In addition, Sarah Holmes, of PenTec
, will be speaking on “Handwriting:
Reading Between the Lines in Jury Selection.” A limited number
of spaces are available for attorneys who wish to attend. Please
contact me for details.
-- Edward P. Schwartz

Most of the systematic information we have on jury decision-making
comes from mock jury research. This methodology has much to recommend
it, in that researchers can control and monitor the decision-making
environment, allowing confident linkage between behavioral responses
and variables of interest. That said, we are always mindful of issues
related to external validity – how closely do real-world jurors
mirror their experimental counterparts. As such, it’s a good
idea to monitor how jurors make decisions in real cases and compare
what they say with the experimentally generated conventional wisdom.

Sticking it to the man

In the first Vioxx trial, held in Texas, the jury not only held Merck
liable for the death of Robert Ernst, but they also delivered a $229
million punitive award against the drug manufacturer. Punitive
damages are intended to be quasi-criminal, in that they are used to
punish intentional wrongdoing. As such, the typical rationales for
punitive awards are deterrence and retribution. Deterrence requires
jurors to think about how likely the defendant's actions were to cause harm, the expected magnitude
of that harm, and the likelihood that the wrongdoing would be
detected and successfully prosecuted. These calculations allow a
jury, in theory, to set the damages high enough to deter would-be
tort-feasors from similar actions in the future.
Retribution is a more nebulous concept, but the calculation of
"just desserts" presumably requires consideration of both
the amount of harm done and the moral reprehensibility of the illegal
act. So, do jurors set punitive awards in keeping with either of
these objectives?
Consider a quote from juror Rhonda Wade:

"Our award was based on the fact that once they figured out they had
no choice but to make the label change, they chose to stall
it in order to make as much as $229 million. And we don’t want
them to stall. We want them to tell us the truth, and be

Confirmed juror David Webb:

"$229 million was the amount of money Merck would gain if they put
off changing the label."

This fixation on Merck's sales figures highlights a couple of
important points. First, the jury didn’t seem to really think
in terms of either deterrence or retribution. They instead chose to
focus on taking back the illicit fruit of Merck's deception.
Recent experimental research shows pretty definitively that jurors
don't do deterrence calculations, even when their instructions
are specifically designed to encourage it.

The second point involves the use of a particular number. As I have
discussed in earlier issues of the Jury Box, jurors typically employ
an "anchor and adjust" strategy for calculating damages.
They find a plausible number, typically offered by one side or the
other, and work from there. Here, the jurors locked onto a number
that seemed to be in the right ballpark. Where did the jurors get
this number? As juror Stacy Smith reported,

"That was a number that they kept saying over and over. When
you’re sitting there for five weeks and that number kept being
repeated, the number stuck in our minds."

The plaintiff team in this case did an excellent job of providing
the jurors with an anchor. Keep in mind that jurors are always
searching for a useful anchor; don’t let the other side provide
the only one.

The wrong time to play the race card.

In a recent Cape Cod, Massachusetts case, Christopher McCowen, a
black man, was convicted of killing Christa Worthington, a white
woman. After the verdict, three of the twelve jurors filed
affidavits, alleging racism on the part of some of their fellow

According to Roshena Bohanna, one of the three concerned jurors, one
white juror remarked, "Guys, the defendant looked at me. He
scares me." When asked why, she replied, "I don't
know - he's this big black guy, you know. He frightens
Juror racism is normally grounds for a mistrial, especially regarding
a cross-racial crime, but the defendant is almost certain to fail in
his efforts to secure a new trial in this case.

Why? Because the allegations of racism emerged after the verdict was
already in. Federal Rule of Evidence 606 (b) (and its state
counterparts) disallows post-verdict testimony by jurors regarding
deliberations or anything contributing to their states of mind during
deliberations. What could the defense have done in this case? It is
critical that the jury understand that any concerns about improper
juror conduct must be reported promptly to the judge. An attorney who
is worried about such matters should request that the judge instruct
the jury accordingly.

This case also highlights one of the worst-kept dirty little secrets
of our criminal justice system. Unanimous verdicts do not always
reflect unanimous consensus on the jury. When good-faith, rational
deliberation fails to resolve disagreement among jurors, choosing a
verdict becomes a process of bargaining, haggling and sometimes
intimidation. One has to wonder why the jurors who disagreed with the
nature of the deliberations in this case went along with the verdict.
In the end, all twelve of the jurors, including the three dissidents,
did vote guilty. There is a very strong legal presumption (despite all
the evidence to the contrary) that a juror who votes guilty was
actually convinced beyond a reasonable doubt.

How strong is this presumption? Consider the case of Heidi Fleiss,
the notorious Hollywood Madame. Her jury ultimately acquitted her of
several drug distribution and prostitution charges and, instead,
convicted her of the rather innocuous sounding charge of pandering.
Little did the jurors know that pandering is a serious felony
carrying a minimum 3-year prison term. Distraught by Fleiss’s
sentence, the jurors all signed a letter to the judge, indicating
that they were mistaken in their verdict, in light of the
corresponding punishment. The judge refused to reopen the case.

Taking Stock of the Enron Verdict

As I have mentioned in earlier issues, there are two main modes of
jury deliberation: evidence driven and verdict driven. Most juries
experience both at some point in their discussions. Evidence driven
deliberations focus on establishing exactly what happened among the
litigants – who did or said what to whom when. The jury tries
to build a common understanding of events. This type of deliberation
tends to be collegial, egalitarian and thorough; unfortunately, it
can also be inefficient and meandering. By contrast, once a jury
settles into verdict driven deliberations (usually after taking a
straw vote), jurors tend to become more confrontational. Camps form,
spokespersons emerge and civility lags. On the plus side, a verdict
usually follows fairly quickly after the jury goes into this mode.

The jury in the Enron trial appears to have effectively worked in
evidence driven mode for quite some time. According to juror Deborah

"We answered all the questions, we tore the boxes [of
evidence] apart and we looked at all the evidence. We won't
have to worry about this later because we did it right the first

Added juror Wendy Vaughan, "It was like having a 25,000 piece
puzzle dumped on the table." The jury apparently began
deliberations by building their own timeline of events and
statements. These are clearly the actions of jurors who saw their
primary task as figuring out what happened, rather than picking the
right verdict from a limited menu.

Libby, Libby, Libby labeled a Liar, Liar Liar

The jury in the Libby trial appears to have been similarly evidence
driven. According to Denis Collins, a juror and former reporter,

"We had about 34 PostIt pages, I don't mean the little
ones you stick on; they were like two-and-a-half feet by two feet,
and they were filled with all the information that we distilled from
the testimony. We took a long time to do that. We took about a week
just to get all these little building blocks there."

Asked why deliberations took a full ten days, Collins replied,

"We didn't start to do a straw vote right away and say,
"Well, what do you think?". Well, it was too big, it was
too much, it was too important. We just didn’t do that. So,
that’s why it took so long."

Had the jury taken that early straw vote, the deliberations would
have certainly taken a different route. Given the general advantages
of evidence driven deliberation, it is a shame that jurors are not
given any guidance on the timing of straw votes by trial judges.

Another interesting tidbit from the Libby case involves the
definition of "reasonable doubt" On the eighth day of
deliberations (after all the PostIt sheets had presumably been filled
out), the jury sent the following question to the judge.

"We would like clarification of the term ‘reasonable
doubt’. Specifically, is it necessary for the government to
present evidence that it is not humanly possible for someone not to
recall an event in order to find guilt beyond a reasonable doubt."

Jurors often have difficulty interpreting the reasonable doubt
standard. How much doubt is reasonable? Horowitz and Kirkpatrick
(1996) conducted a study on the impact of instruction wording on
self-reported thresholds for reasonable doubt. Clearly, all
reasonable doubt instructions are not created equal. Language about
remaining “firmly convinced” (FC) of the verdict produced
the most demanding reasonable doubt threshold, while language about
doubt that would cause a juror to “waiver or vacillate”
(WV) created a substantially lower threshold. Note that deliberation
only managed to ratchet up the threshold when the “firmly
convinced” language was used. Leaving the definition to the
jurors’ own imaginations (UD) also produces alarming low
reasonable doubt.

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January, 2007 Jury Box Newsletter: Is Jury Trial Really Vanishing?

Vol. 3, No. 1. January, 2007

Quick Links

The Devil You Know <#the>
As Rummy would say, "We know what we don't know." <#as>
You can Always Hire a Professional <#you>
Meanwhile, back in criminal court <#mean>

Welcome to another year of The Jury Box. This one promises to be our
hottest yet! That's right, it's the global warming edition of The
Jury Box. So far, up here in Boston, we have had one day with high
temperatures below freezing. My brother-in-law's investment in a
snow-blower is looking a little silly about now. I'm sure the
blizzards must be right around the corner. At least George Bush is
willing to admit that global warming actually exists.

The legal climate is changing, too. The President has agreed to
submit his domestic wire taps to a judge, albeit a secret one,
employing an expedited, yet complex, procedure that Alberto Gonzales
seems unwilling (or unable) to explain to Congress. A member of the
administration urged companies and law firms not to hire attorneys
who defend detainees at Guantanamo Bay, essentially calling them
traitors. Check out Daniel Coquillette's excellent op-ed in the
Boston Globe, drawing parallels to the lawyers who defended British
officers after the Boston Massacre of 1770.

Medical malpractice awards are falling and people are finally coming
to grips with the possibility that the torts crisis might never have
existed in the first place. Several states have adopted significant
jury reforms in the past year (plain English instructions, jury
questions, note-taking, etc.), while others re-examine their
commitment to capital punishment. I'll try to help you keep up with
the changing tides.

/-- Edward P. Schwartz/

Much ink has been spilled about the "vanishing jury trial." (See
e.g. Massachusetts Lawyers Weekly, November 27, 2006.) It seems
strange to talk about a dearth of jury trials when the backlogs at
most courthouses are longer than ever. Of course, if there are more
lawsuits than ever, and they typically take longer to try, the
dockets can get crowded while the percentage of cases going to a jury
actually declines. For this discussion, I will take it as given that
fewer cases (as a percentage) are going to jury trial. I want to
review some of the suggested causes for this decline and then discuss
some implications.

The Devil You Know

While many cases avoid going to trial because of the use of
alternative dispute resolution techniques, the primary reason for the
reduction seems to be that more cases are being settled before trial.
Some have suggested that the evolution of a highly-skilled and
experienced industry of professional mediators has increased
settlement rates, largely by providing the parties with an expert and
objective evaluation of how a jury is likely to react to a case. Along
similar lines, as more litigants employ jury consultants, they enter
settlement discussions with realistic expectations of how their cases

play before a jury. The basic hypothesis here is that as litigants'
expectations about the outcome of a trial converge, it is easier to
achieve settlement.

At the opposite end of the spectrum lie the doomsayers, who claim
that lawsuits get settled because litigants are terrified of the
arbitrariness of jury verdicts. The logic goes that if a jury trial
is a complete crap-shoot, almost any settlement is preferable to
going to trial. While the potential downside of trial is clearly
worse for defendants (since the sky's the limit for damage awards),
plaintiffs (who are more likely to be individuals) tend to be more
risk-averse. The combined result is a desire by both sides to settle
rather than go to trial.

These explanations for increased settlement rates seem to be at odds
with one another. Are jury trials becoming more predictable or less
so? I would argue that the answer is "both." To understand this
seemingly paradoxical answer, it is important to focus on the kind of
uncertainty at issue in each hypothesis.

As Rummy would say, "We know what we don't know."

We seem to have made great strides in evaluating cases with respect
to which party is likely to win on the question of liability. Both
statistical models of case outcomes and mock jury studies have shown
good predictive power with respect to liability verdicts. When I have
run multiple focus group or mock trial panels for the same case,
almost never do two panels from the same treatment reach different
verdicts on liability. It is possible, of course, to affect the
verdict by changing the treatment. A big part of my job is to help a
lawyer find the presentation strategy that maximizes the likelihood
that the jury will find for her client. A particularly good strategic
shift can "flip" a case from a loser to a winner. The point here,
however, is that, given a fixed case presentation (and jury selection
technique), most juries will hand down the same verdict on liability.

Both mediators and jury consultants provide cover for the lawyer who
does not want to admit to her client that her case is a likely loser.
The lawyer can save face if a neutral expert breaks the bad news.
This facilitates settlement since the client has received an accurate
assessment of her chances in court, even if said assessment did not
come from her own lawyer.

Knowing which party is likely to win on liability does not resolve
all of the uncertainty of a jury trial, however. The devil's in the
damages. Empirical research has made significantly less headway in
predicting jury damage awards. The problem seems to lie in the
translation of juror objectives into dollar amounts. Even when two
mock juries seem to completely agree on what they want to compensate
the plaintiff for, and the extent to which they want to punish the
defendant, they can arrive at wildly divergent dollar amounts.

As I have discussed in an earlier issue of The Jury Box, juries tend
to adopt an "anchor and adjust" strategy for arriving at damage
awards. Anchors tend to be very malleable and juries typically have
little guidance (and even less experience) in translating "harm and
deterrence" into "dollars and cents."

So, we live in a world in which parties can often agree about how
likely the plaintiff is to win on liability, but they can have wildly
differing estimates of the likely damage award. In addition, neither
party will have much confidence in her estimate of that award. Each
party can derive comfort from a fixed settlement or an arbitration
award with a predetermined high-low agreement.

You can Always Hire a Professional

In addition to settlement, which always remains an option, many
cases avoid jury trial by opting for a bench trial or binding
arbitration. Either of these options can be agreed to by the parties,
or, in the case of arbitration, might be stipulated in a pre-existing
contract between the parties. Given the increasing popularity of
these jury-free options, it is interesting to examine whether they
perform any more reliably than jury trials.

Setting aside criminal trials, case outcomes from juries,
arbitrators and judges are remarkably similar. Juries actually find
defendants liable slightly less often than judges. On the other hand,
juries very occasionally hand down enormous damage awards that one
would never see from a judge. If one were to eliminate the top 1% of
jury awards, one would find that judges and juries tend to compensate
plaintiffs at similar rates.

In light of the growing insistence on arbitration by large companies
in contracts of adhesion (read the tiny print on the back of your
credit card statement), it is surprising to see that arbitrators are
actually more likely to find for the plaintiff than are juries. (See
Wittman 2003 for automobile accident cases and Delikat 2000 for
employment discrimination cases).

The main lesson from these findings is that the increased avoidance
of jury trials (via settlement, bench trial or ADR) seems to be
driven mostly by a fear of the unpredictability of jury damage
awards. Several recent, and ongoing, developments should serve to
mitigate that fear. First, research continues to show that other
decision-makers, such as arbitrators and judges, are subject to many
of the same heuristic foibles as are jurors. Second, empirical
studies show that these "professional" fact finders do not seem to
decide cases very differently than do juries. Third, most "outlier"
damage awards are adjusted down by judges, either immediately or upon
appeal. Fourth, the line of US Supreme Court cases including /BMW/ and
/State Farm/ have effectively capped punitive damages at ten-times
their compensatory counterparts. Finally, more and more attorneys are
choosing to focus their pre-trial jury research on the question of
damages, rather than liability. As such, I anticipate that we may see
a rebound in the use of jury trials in the next few years.

I have argued for some time that it is unfair to evaluate the
desirability of the jury system until we have a system in place that
maximizes the ability of jurors to do their jobs. This means treating
them with proper respect, instructing them in language they can
understand, and adopting procedural rules that maximize juror
comprehension of both the law and the facts. After almost a thousand
years of jury trials, we are inching our way closer to implementing
such a system.

Meanwhile, back in criminal court

In their seminal work, /The American Jury (1966)/, Kalven and Zeisel
reported on a study comparing jury verdicts in criminal cases with
what the presiding judges would have done in the same cases. The
basic result was that judges agreed with virtually all convictions,
/but disagreed with more than half of jury acquittals/. This study
was replicated in 2005 by Ted Eisenberg and others, using data from
modern trials. It is remarkable how closely the modern results mirror
those from more than fifty years ago.

Perhaps even more remarkable are the results reported by Andrew
Leipold in his study of /federal/ juries and judges. It turns out
that while the conviction rate before federal juries was 84% over a
fifteen-year span, it was only 51% before federal trial judges. In
light of these numbers, (being in contrast to the studies using state
data), Leipold asks the sensible question, "Why are Federal Judges so
Acquittal Prone?" (2005)

This discrepancy has not always existed. While conviction rates for
federal juries have been climbing steadily since at least the 1940s,
the precipitous decline in judicial convictions really began in the
1980s. The greatest puzzle in the data is that the percentage of
federal defendants choosing jury trials has been rising along with
juridical conviction rates. So, why are defendants increasingly
choosing to go before juries that are likely to convict them? Before
you start citing Federal Rule 23, consider that Leipold found that
virtually no federal jury trials resulted from a prosecutor denying
the defendant a bench trial.

Unlike in the two other studies, here, judges and juries heard
different cases. As such, it is important to correct for selection
effects. That is, certain types of cases likely go to juries more
often than others. In order to compare "apples to apples," Leipold
had to account for these effects in his statistical model. He found
that "public order" crimes have particularly low conviction rates,
with a wide disparity between juries and judges, and these cases make
up /more than two-thirds/ of federal bench trials. Exploring further,
Leipold discovered that a full 50% of bench trials were for
misdemeanor traffic offenses. Absent these, the conviction gap was
84% to 60%.

The most compelling explanation that Leipold uncovered was the
chilling effect of the Federal Sentencing Guidelines. As judges were
required to impose harsher sentences for relatively minor offenses,
they exhibited an increasing reluctance to convict. It will be
interesting to see how the holding in /Booker/, making the guidelines
entirely advisory, will affect future conviction rates for federal

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