Medical Malpractice Verdicts only tiny contributor to health care costs

Oh, the humanity!!!!

Arghh!!!!! Ack!!! WTF, WTF, WTF?????!!!!
Well, that was me yesterday about this time. You see, I had written about 5 pages of really good stuff about medmal cases and healthcare. I was on a roll!!! Then, "poof" -- it was gone! All the text disappeared from the Blogger editing window. As I sat there in horror, the auto-save kicked in, rewriting everything I had written with a blank page. I frantically googled "retrieve old versions of blog post drafts," but to no avail. It was...... gone. Let this be a lesson to all of you out there with blogs. Methinks I will start writing my blog posts in a standard word processing program and then copying them over.

Back to our regularly scheduled programming.

The healthcare debate rages on. Well, people are raging on, but it hardly qualifies as a debate, given that more false "facts" are circulating around than true ones. This is why David Leonhardt's article in the New York Times this week was such a breath of fresh air. Mr. Leonhardt collected the results of several recent studies on the impact of medical malpractice lawsuits on healthcare costs, interviewed several of the researchers, and presented his findings in an organized, cogent manner. Freaky, eh?

Don't blame the plaintiffs (or even their lawyers)

The first important finding is that money spent on medmal litigation is a truly negligible drop in the proverbial bucket when it comes to the cost of healthcare. According toLeonhardt,

All told, jury awards, settlements and administrative costs — which, by definition, are similar to the combined cost of insurance — add up to less than $10 billion a year. This equals less than one-half of a percentage point of medical spending.

Since this figure includes all the administrative and litigation costs, the amount that insurers pay out to plaintiffs is even smaller.

So, if medmal litigation really isn't particularly costly, why does it receive such media attention? Why do the insurance companies and conservative commentators succeed in convincing many Americans that there is a crisis in medmal litigation? First of all, those interested parties work really hard to make that argument. Second, the rare enormous damage award against a doctor or hospital is considered newsworthy. By contrast, when an injured person gets nothing, or doesn't even bother to bring suit, there is really nothing to report.

Does this mean that behavior related to medical malpractice litigation is unrelated to increasing healthcare costs? Not so fast, amigo. Leonhardt also surveys studies of "defensive medicine" and finds that fears of being sued does seem to drive some doctors to "over-treat" patients. According to Amitabh Chandra — a Harvard economist whose research is cited by both the American Medical Association and the trial lawyers’ association —

approximately $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate [of the cost of wasteful treatment.]

So, litigation, or more precisely, concerns about litigation, can have second-order effects on health care spending.

It turns out then that FDR was right all along: "The only thing we have to fear is fear itself." The system is not paying much associated with medical malpractice lawsuits, but propaganda about it has generated enormous inefficiencies in care.

Does the system work?

This is not to say that the medical malpractice system isn't broken. It's just broken in exactly the other direction. The real problem is that injured patients are very substantially under-compensated for the harm they suffer at the hands of negligent medical professionals. According to Leonhardt's review of current research,

After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim. For every notorious error, there are dozens more. You never hear about these other cases.

The system is actually stacked against plaintiffs in these suits and it is only getting worse. Consider recent reforms enacted in a wide variety of states. Damage awards have been capped for pain and suffering. The application of punitive damage awards has been curtailed (even by the Supreme Court in a series of highly dubious opinions). Preliminary tribunals have been established, manned by healthcare workers -- if they reject the merits of your case, you need to post a bond to take it to court. This all makes it harder, more expensive and more time-consuming to bring a medmal lawsuit, regardless of the merits of the case. As such, a health care provider is very unlikely to be successfully sued for negligent care. So, if the litigation system is adversely affecting incentives in the healthcare arena, it is doing so in the direction of encouraging poor care.

So, there are problems with medical malpractice litigation in both directions. First, every once in a while, a plaintiff really does walk off with way more money than she deserves. This is fundamentally a problem with how jurors try to calculate damages (more about this below). In the other direction, it is way too hard for a legitimately injured patient to successfully sue for the compensation she deserves. All in all, the system encourages doctors to "treat like hell" without sufficient attention to the care with which that treatment is administered.

What is a lowly trial consultant to do?

All of this implicates some pretty heavy issues, well beyond the scope of my expertise. Within the relatively narrow band of jury trial procedures, however, I do have some sensible suggestions. So, here goes.

Increase juror comprehension of medical issues

Experts need to do a better job of teaching jurors about the medical procedures being litigated. Lawyers need to do a better job of making sure their experts are in a position to teach those lessons. Make sure your expert has appropriate visuals and that the expert knows how to use them. Practice, for Pete's sake! Even better, put your expert's explanations before a focus group and find out if they actually understand what the heck she's talking about. Don't be penny wise and pound foolish. There's real money at stake here. Do you really want to count of winning despite your expert's testimony?

The courts should take a more active role in insuring that jurors understand the medicine involved in these cases. If the area of medicine is tricky or esoteric, the court should ask to hear the experts' presentations in advance. If the judge is not satisfied that the jury will properly learn the material from the scheduled experts, the judge should send the parties back to try again. If necessary, the judge should bring in a neutral expert to bring the jury up-to-speed. The adversarial system be damned, we must first-and-foremost insure that jurors understand the fundamentals of the case.

Jurors should be strongly encouraged to ask questions of expert witnesses after their testimonies. So many medical malpractice cases turn on evaluating the competing opinions of opposing experts that it is critical that the jurors understand what those experts are talking about. If a juror wants an expert to explain something over again, that expert should do so. One variation on this theme would be to have both experts available for questions at the same time, after both have testified. Perhaps this would take place immediately before closing statements.

Make the law easy to understand

Jurors in these cases have enough bewildering terms and jargon to sort through on the medical side of the ledger, they shouldn't have to worry about deciphering their instructions, too. Jury instructions should be in plain English, pre-tested for ease of comprehension (and given to the jury in writing). The verdict slip should be in the form of interrogatories whenever possible, so that the series of tasks to be completed is self-evident. This will help avoid the conflation of negligence and causation that plagues many a jury deliberation is such cases. Finally, the jury should be given a list of medical terms with definitions to bring into the jury room.

Pay special attention to damages calculations

These trials should be bifurcated. This has two major advantages. First, it reduces the effects of injury seriousness on the likelihood of the defendant being found negligent. We know from decades of experimental research that this is a serious problem. Second, jurors have very little guidance when calculating damage awards. We know that "anchors" are extremely influential, with the most salient one being the ad damnum (plaintiff's requested award) where one is permitted. By bifurcating the trial, the ad damnum can be held back from the jury until after the liability determination has been made. Once a defendant has been held liable, the defense team no longer feels compelled to avoid talking to the jury about damages. The damages phase of the trial will be more of a "fair fight", with both sides providing arguments about how much harm the victim has suffered. This will provide the jury with much more information to use in calculating an appropriate damage award.

Every little bit helps

If these relatively straightforward reforms were implemented, the likely outcome would be that plaintiffs would prevail somewhat more often on liability, but inappropriately high damage awards would largely disappear. In fact, I think that the variance in damage awards would be greatly decreased. All of this would serve to increase the predictability of jury trials in medical malpractice cases, enabling parties to successfully settle cases more often. Such a result would represent a significant savings in court costs. Hopefully, it would also effect a modest improvement in the quality of care received by patients.

Criminal jury verdicts aren't really unanimous: Implications for your practice

The Worst Kept Secret in Criminal Law

We all knew it. Right? There are lots of reasons why individual jurors vote with their peers despite misgivings. They want to be liked. They want to go home. They are tired of being brow-beaten by the others. They don't want to disappoint the judge by hanging the jury. They just don't care. What we didn't know was just how often it happened -- until now.

The statistic previously cited in the debate about the desirability and/or practicality of unanimity was hung jury rates. You've read my discussion of hung jury rates in this very blog. The estimate of the national average is between 6% and 7% of criminal trials end in a hung jury. For felony trials in some California counties, the rate is over 20%. In Oregon, which uses 10-2 verdicts, the rate is below 1%. The problem, of course, is that the hung jury rate is a very poor proxy for what we really wanted to know: How often do juries remain "deadlocked" after completing deliberations? (where deadlock refers to a situation where a unanimous consensus about the right verdict has not been reached).

Nicole Waters of the National Center for State Courts and Valerie Hans of Cornell Law School have finally taken a step towards answering this important question. As part of the National Center for State Courts project on hung juries, the authors gave out post-trial surveys to almost 4000 jurors across 4 states and got back completed forms from almost 3500. This covered 367 trials. Among the questions they asked was: "If it were entirely up to you as a one-person jury, what would your verdict have been in this case?" It is important to appreciate that all of these verdicts were unanimous, in that all the jurors officially voted for it. Therefore, each "conforming dissenter" (Authors' term) is someone who voted for a verdict she thought was wrong.

The Non-Unanimous Bombshell

Remember that estimates of hung jury rates range around 7%. These are the cases with a dissenter who refused to conform. In the Waters and Hans study, 38% of juries contained at least one juror who disagreed with the general outcome of the case but voted for it anyway (conviction or acquittal). This is the most conservative measure of dissent. Juries are often faced with multiple charges against the defendant or a choice among lesser-included-offenses. So, it is possible that a defendant can be convicted, but not of the charge that a juror thought was most appropriate. Taking this into account, 54% of juries contained at least one juror who disagreed with the jury's verdict on at least one charge. That is, more than half of the juries contained at least one juror who voted insincerely. Nearly half of the juries (46%) contained at least one juror who disagreed with the verdict for the most serious charge facing the defendant.

According to the authors, only 82 of 351 dissenting jurors ultimately hung their juries. The article suggests that the average number of dissenters for cases resulting in a hung jury was just over 3. Therefore, we can tease out that about 25 of these cases resulted in a hung jury, or about 7% of the sample (consistent with previous estimates). By contrast, there were typically about 1.5 conforming dissenters on any case that returned a verdict (if there were any conforming dissenters at all). So, for every single hung jury, there were approximately 8 cases in which the purported unanimous verdict was a farce. When debating the merits of unanimity in the future, hopefully scholars and pundits can move beyond the misleading metric of hung jury rates and focus on the real problem at hand: How do we feel about a system that forces jurors to compromise their own values and judgments to conform to the majority will?

Making use of these results in your next case


While we wait for the Supreme Court and the state legislatures to figure out what to do with these revelations (probably nothing), you should consider them carefully as you prepare for future cases.

The first lesson is that very few criminal cases result in truly unanimous juries, even after prolonged deliberations. If you are a criminal defense attorney, you should always hammer away at the "personal responsibility" angle of jury service. Remind jurors that each has taken an oath to hear all the evidence and reach a conclusion based on her own wisdom and conscience. Emphasize that the Court would never want any juror to vote for a verdict she did not believe was correct. I would include language about being sympathetic to their plight: "Sometimes peer pressure can be strong. Sometimes it is just easier to go along with everyone else, to avoid conflict, to be cooperative. I recognize any sympathize with these instincts. But just remember that the Court has not tasked you with being accommodating or friendly or cooperative. The Court has tasked you with doing the right thing."

The authors of this study have examined some of the things that lead dissenters to hold their ground and hang the jury, rather than giving in to the majority. The first result, supported elsewhere, is that dissenters who favor acquittal are less likely to switch their votes than are dissenters who favor conviction. So, in a case with substantial support on both sides, an acquittal is much more likely than a conviction. A prosecutor needs to be certain that she will secure a very substantial majority for conviction in order to avoid a hung jury. By contrast, a defense attorney can secure an acquittal, even if a handful of jurors initially favor conviction.

Procedures matter. I have written in my column for Lawyers Weekly USA about the consequences of different methods of taking votes in the jury room. As I predicted in that piece, Waters and Hans discovered that juries that took secret ballots were more likely to have dissenters on them. The logic here is that a dissenter will worry less about sticking out like a sore thumb if she can register her objection in private. A secret ballot also allows potential dissenters to discover whether they have any allies on the jury. There might be three or four jurors who are reluctant to be the only one raising a hand in favor of the minority position. As a result, none of them do. A potential block of dissenters is never discovered. A secret ballot avoids this game of "chicken."

I have previously discussed in The Jury Box the importance of "straw poll timing" for the nature of jury deliberations. Juries that immediately take a vote find themselves embroiled in "verdict-driven" deliberations, while those who delay voting spend more time in the generally superior "evidence-driven" mode of deliberations. After a vote is taken, jurors tend to fall into camps, with spokespersons emerging for each. As a result, fewer jurors participate in discussion and jurors tend to get locked into their views. The Waters and Hans study shows a small but significant effect of early polling of jurors. When a jury takes an early vote, it is more likely that at least one juror will disagree with the final verdict. This is probably because an initial dissenter is more likely to feel "outvoted" than "convinced" if the deliberations devolve into a discussion of how to get everyone to vote the same way -- rather than getting everyone to agree.

If you have a case in which you are advocating what you fear will be the "unpopular" position (thought legally defensible), you would be advised to encourage jurors to vote by secret ballot. While you cannot instruct the jury to vote in a particular way, keep in mind that they have no explicit instructions about procedures. As such, a subtle suggestion in closing can be effective. "I want you all to keep an open mind. As you tear up those little slips of paper to cast your ballots, I hope that you will consider everything my client has said on the stand..."

It is much harder to find a way to suggest that jurors take an early straw poll. In fact, many judges now recommend to juries that they not be in a hurry to take a vote, first spending a fair amount of time just sorting through the evidence. Remember that an early vote is a two-edged sword. While it might cause your supporters to harden their positions a bit, it also reduces their abilities to sway the votes of jurors on the other side.

One important question is how volatile are juror evaluations of cases. That is, do they generally change their minds during a case? The answer to this question is a bit unclear. Over 62% of jurors indicated that they had changed their minds at least once during their case. But what does a juror mean when she says she "changed her mind"? Given that 40% of conforming dissenters admitted to changing their minds during deliberations, as compared to 25% of holdouts (those who hung their juries), I fear that many respondents equated changing their votes with changing their minds. The percentage of jurors who reported changing their minds at some stage prior to deliberations is closer to 25% (difficult to pinpoint from the reported data). Some of these respondents are undoubtedly reporting an earlier change as a compensatory mechanism for cognitive dissonance -- they don't want to admit to themselves that they were bullied into changing their votes during deliberations. That said, it would seem a conservative estimate that about one in five jurors really does change her evaluation of the case at some point in the proceedings.

The lesson here would seem to be that a case is not really won or loss during jury selection, as many cynics would argue. There are a substantial number of jurors who can be convinced to re-evaluate their initial positions during a trial. So, pay close attention to your trial technique. Make sure your case is coherent and clear. Finally, be sure to hit the high points in closing to reinforce the items that might have gotten jurors rethinking their views.

This brings us to the question of jury selection. It turns out not to be so critical to select a jury fully comprised of your supporters. These juries seem few and far-between. Most cases result in at least some form of disagreement among jurors that must be resolved during deliberations, either through a genuine exchange of ideas or, more likely, the conversion of conforming dissenters. This reinforces something that trial consultants like me have been trying to explain to clients for years. When evaluating a prospective juror, it is important to consider not only whether the juror is likely to be sympathetic to your case, but also what role the juror is likely to play on the jury. If the juror turns out to favor the other side, is she going to be a holdout or a conforming dissenter? I can't always tell if a prospective juror is going to be pro-prosecution or pro-defense, but I usually have a good sense about whether she is likely to be a leader or a follower, whether she seems more eager to please the court or those around her, whether she relishes the opportunity to be a contrarian. These characteristics are critical and must be explored during jury selection.

OK. This post is really, really long. That's because I think these results are really, really important. Among other things, they emphasize the importance of relying on data, not conjecture. Those who presumed that unanimous verdicts were produced by unanimous juries are just dead wrong. What else might they be wrong about? Do you really want to rely on conjecture the next time you need to pick a jury, or prepare a witness, or select a trial theme? There is no substitute for good research. OK, there's my quick sales pitch.

Please comment on this post! Let's see if we can stir up some trouble.

Bowen v. Oregon: Why non-unanimous jury verdicts are Constitutional in criminal cases

A Rejoinder to the Amicus Brief filed by Samuel Gross, et al.

In Bowen v. Oregon, the Supreme Court of the United States is asked to reconsider its decisions in Johnson v. Louisiana and Apodaca v. Oregon (companion cases from 1972), finding that non-unanimous jury verdicts in criminal cases are consistent with the 6th Amendment of the Constitution. Some of the most respected scholars in the field of jury behavior -- political scientists, law professors, psychologists, sociologists and economists -- have banded together to submit an Amicus Curiae (friend of the Court) brief in support of the petitioner. That is, they all want unanimous verdicts to be Constitutionally mandated.

I always teach the Apodaca and Johnson cases in my class on the civil and criminal procedures of jury trials because the opinions are wonderful examples of arguments based on conjecture without empirical foundation. The majority argues that there is no evidence to suggest that jurors won't deliberate responsibly, regardless of the decision rule. The minority contends that there is no guarantee that the jurors will deliberate responsibly without unanimity. What we are left with is a disagreement about human nature, with neither side supported by any data. In 1972, the "optimists" won by a nose, with a jumble of separate opinions spread over two cases.

Gross and his colleagues recognize explicitly in their brief that the Court lacked empirical data in 1972, but point out that there have been many empirical studies on jury deliberation and decision-making over the past 37 years. As such, we no longer need to rely on conjecture. Let the data speak for themselves.

I hate the movie, "Twelve Angry Men." As drama, it is pretty compelling, but as a lesson in deliberation and jury behavior, it is the pits. My students all rally around the idea that unanimity is critical because otherwise Henry Fonda never would have been able to save that young man's life! It is truly ironic, then, that I find myself as a minority of one, disputing the conclusions of more than a dozen esteemed colleagues, some of whom are good friends. The problem is: they're just plain wrong.

They are, of course, correct that there has been a lot of empirical research on jury behavior over the past few decades. Much of the best work has been conducted by the very scholars who have signed the brief. Unfortunately, the data just don't tell us the story these folks wish they did. I will outline a few things here, but a complete rebuttal can be found in my 2000 article, co-authored with Warren Schwartz, published in the USC Interdisciplinary Law Journal, entitled "And So Say Some of Us...: What to do when jurors disagree." You can access the full article here.

The Rest of the World

We inherited our common law system from England, as did Canada and Australia. It is important to realize that England has been using a 10-2 decision rule from criminal trial since before the Apodaca and Johnson decisions. There has been no crisis of confidence in jury verdicts in England. No-one is crying out for the return of unanimity. In fact, with the hung jury rate rising to 0.7% (That's 7 hung juries for every 1000 cases), there have been calls to relax the decision rule even further. The states of Australia use a variety of decision rules and the couple retaining unanimity have seen recent public clamor to dump it in favor of 10 - 2 or 9 - 3.

Most other countries in the world use some form of "lay judges" for certain kinds of criminal cases. These folks usually sit in judgment with a small group of professional judges. None of these countries employ a unanimity rule. They usually employ some form of qualified majority that prevents the judges from "out-voting" the laymen. Japan just implemented jury trials for the first time since the Second World War. They use mixed panels (3 judges and 6 laymen) with a simple majority rule.

It is also worth pointing out that the courts that evaluate jury verdicts for "miscarriages of justice" and other decision-making infirmities make their decisions by simple majority rule. Military courts martial are conducted with a 2/3 majority rule. Similarly, when the Senate acts as a jury in impeachment proceedings, it uses a 2/3 majority rule. Let's not forget that George Bush won the 2000 Presidential election by a vote of 6 - 3. In light of the thousands of soldiers and civilians who have lost their lives as a result, it is hard to imagine any judicial decision with larger implications.

Does deliberation suffer without unanimity?

In light of the exceptionalism of the American unanimity rule, one might sensibly wonder,"What is everyone so worked up about?" Well, criminal defense attorneys are clearly concerned that conviction rates will go up. But what about the academics who signed this amicus brief? The rallying point for this group is that deliberations are superior when a unanimity rule is used than when a majority or supermajority rule is used.

One of the primary forms of evidence for this proposition is the post-study participant satisfaction survey. Mock jurors are asked how "satisfied" they are with their experience and how "confident" they are in the verdict chosen by their panel. Unsurprisingly, jurors in the unanimity setting express greater satisfaction and verdict confidence. Cognitive dissonance can be a wonderful thing. Since all of the jurors in the unanimity setting voted for the same verdict, by definition, they are, of course, inclined to report satisfaction with the result. To admit otherwise would be to impugn their own decisions to vote with everyone else. By contrast, a juror who was outvoted can prop up her own self-image by claiming that the deliberative process must have been flawed in some way. Such opinions can only be expressed in the non-unanimous setting. Hence, regardless of the objective quality of both the deliberations and resulting verdict, we would expect to see the differences in self-reporting that are regularly reported.

Another metric that is often summoned to support unanimity is the length of time that a mock jury spends deliberating. In most studies, juries using unanimity deliberate for longer than do juries using some form of supermajority rule. But this begs the question: "Is all deliberation good deliberation?" Imagine a twelve person jury that spends two hours carefully reviewing all the evidence and testimony, establishing a timeline they can all agree to, and coming to a mutual understanding of what their instructions are asking them to decide. They then take a vote and discover that 10 jurors have been convinced of the defendant's guilt beyond a reasonable doubt and two have not. The two "holdouts" are somewhat more mistrustful of the police officer's testimony and seem to have a somewhat more demanding conception of reasonable doubt. So far, everyone on the jury has behaved admirably. Information has been shared, opinions expressed and conclusions drawn after careful consideration. In order to reach a verdict, however, the 10 majority jurors will have to convince the other two to change their votes. Through browbeating, exasperation and sometimes personal attacks, such a majority will usually get the holdouts to acquiesce. This process usually takes a while, so "deliberation" has taken longer. But what has been accomplished? Two jurors have been forced to vote against their consciences, civility has been sacrificed and the public has been lied to. Is this "better" than letting the jury hand down a 10-2 verdict?

Are unanimous verdicts really unanimous?

One of the studies often used to support the "unanimous deliberations are superior" hypothesis is by Nemeth (cited in the amicus brief). He compared six-person juries operating under unanimity with those operating under a 4-2 rule (He carefully constructed the juries so that half of each sample started with a 4-2 majority for acquittal and the other half started 4-2 for conviction). What no-one (but me) seems to focus on is that the self-reporting of participants after the study indicates that virtually none of the unanimous verdicts were the result of actual unanimous consensus among the jurors. Consider the table I made from Nemeth's data.



To underscore the important point that a unanimous verdict does not necessarily reflect unanimous consensus, we turn to a very recent study conducted by Valerie Hans, one of the signers of the amicus brief. In her article with Nicole Waters, entitled "A Jury of One: Opinion Formation, Conformity and Dissent on Juries," ( 6 (3) Journal of Empirical Legal Studies, 513 (2009)), the authors reveal that roughly one-third of jurors in actual criminal cases admitted that they actually disagreed with the verdict they had voted for. That is, on average, a unanimous jury verdict in a criminal case was actually only 8 - 4.

Finally, let's remember that, every time a defendant is retried after a hung jury, the resulting verdict has previously been rejected by at least one juror who heard the case. Otherwise, there wouldn't have been a hung jury in the first place. Who's to say that the jury that could reach consensus was more representative, more attentive, smarter or more deliberative than the one that couldn't reach consensus. We also know from the data outlined above that the second jury might just have had jurors more willing to compromise their principles to generate a unanimous verdict.

This begs another obvious question: "If unanimity is a big fat lie, why should anyone want to preserve it?" Perhaps the general public wants to be lied to in this way. Perhaps there is comfort in not considering the implications of sending people to prison (or worse) despite reservations of some jurors. Maybe we don't really want to know how the sausage is made. Even so, it is hard to imagine this as a legitimate rationale for the scholars who penned the amicus brief in support of Bowen's position.

The Future of Unanimity

Unanimity in criminal jury verdicts is what polite lawyers refer to as a "legal fiction." As such, I don't see it as being worth preserving. I would much rather have majority verdicts, handed down by jurors who are strongly encouraged to stick to their principles and vote their consciences. As I have written in both scholarly papers and elsewhere, the elimination of the unanimity requirement would also support the elimination of peremptory challenges, a practice that disenfranchises many Americans from the jury system. It is interesting to note that many of the scholars who signed the amicus brief in support of Bowen's case have also called for the curtailing of peremptory challenges. Eliminating peremptory challenges would create more fully deliberative juries because they would better represent a fair cross section of the community. More voices would be heard. In addition, such a reform would dispense with the need for the ruling in Batson v. Kentucky and its progeny, prohibiting peremptory strikes made along racial lines. Batson, as Marshall predicted in his concurrence more than 20 years ago, has been largely ineffective at reducing overt and subconscious bias in the exercise of peremptory challenges. Non-unanimous verdicts, coupled with truly randomly selected juries, would eliminate this problem once and for all.

Future Podcast on Jury Behavior and Jury Trials

I am in discussions with a major legal podcast producer to host a regular podcast on juries and jury trials. I would review the latest developments in jury research, discuss possible reforms to the jury system, and highlight the interesting implications of ongoing and recent jury trials. I would try to have at least one guest on each show and listener input will be very important.

Before I undertake this endeavor, I want to get a sense of how podcasts are used by litigators and others in the legal profession. To this end, I have posted a poll about podcast listening habits on LinkedIn. I would very much appreciate it if anyone reading this post would click the link and complete the quick poll (LinkedIn membership is NOT required). You can view the results so far after registering your response.

LinkedIn Podcast Poll (<-- Click me!)

Of course, if you have suggestions about the format of such a podcast, I am all ears. Feel free to email me, or leave a comment below, to tell me what you think makes for a compelling podcast. What makes you yawn? What makes you just shut the damn thing off? (We don't want that!) If there is a particular podcast that you really like, let me know so I can check it out.

Thanks!

-Edward

Using Micro-expression Analysis in Jury Selection: A New Beginning

Back in June, I posted a couple of items about David Matsumoto's (from Humintell) training session on micro-expression analysis and lie detection. I had the good fortune to attend a couple of David's sessions at the American Society of Trial Consultants conference in Atlanta.

According to the "post-test," during which we were challenged to identify facial expressions that were exposed for only a fraction of a second, I am a bit of a emotion-detection savant. While I got 85% of the expressions correct, the problem was that I didn't really have any confidence in what I was doing. But the data don't lie -- I was getting it.

I am certainly not ready to chuck everything I know about voir dire and jury behavior in favor of micro-expression analysis (and David would never suggest that anyone do so), but I do recognize the potential value of this technique for identifying emotional "hotspots" among prospective jurors. So, last week, I put my "m.e.-dar" to the test.

We were conducting voir dire in a statutory rape case. The defendant was 19 at the time of the alleged sexual incident and the complaining witness was 15. Not exactly a middle-aged priest diddling an eight year-old altar boy after services. We were definitely looking for jurors who would have some ambivalence about applying the statutory rape law to a case involving a couple of teenagers (allegedly) having consensual sex.

In one of the individual voir dire questions, the judge asked each prospective juror whether s/he would have any difficulty being fair in a case of this type, "which involves the rape of a child under the age of 16 -- in this case a girl who was 15 at the time." Each time this question was asked, I was careful to stare intently at the face of the prospective juror. In a couple of instances, I detected contempt (which is the only one-sided expression), suggesting to me that the juror didn't think too highly of the law being applied in this case. A few jurors looked away from the judge briefly and smiled, perhaps betraying their own sexual escapades at a similar age. Such reactions suggested that the juror might be sympathetic to our case, in that s/he might not be trying too hard to find a reason to convict the defendant.

By contrast, a some prospective jurors crinkled their noses in disgust when the judge described the charge. Perhaps in confirmation of this reaction, several of them indicated that they had close friends or family members who had been the victims of sexual abuse. While I did not recommend that my client strike any prospective juror solely on the basis of such a facial reaction, it did cause me to review their questionnaire responses and suggest that my client request follow-up questions.

As with all such "experiments," we are faced with a problem of the counter-factual. Would I have evaluated jurors differently without paying attention to micro-expressions? Would my judgments have been less astute? Would the jury verdict have been any different? There is, of course, no way to know because this trial will take place only once. In addition, in Massachusetts, attorneys and parties are not permitted to interview jurors after a verdict has been rendered. So, we will never know whether my assessments of individual jurors were generally correct. I am fairly confident, however, that I didn't harm our case by looking for micro-expressions. And I think it might well have helped.

I know that there have been many studies testing the efficacy of micro-expression analysis. To the best of my knowledge, however, there has never been a study testing its value in jury selection. Perhaps Humitell would consider running such a study in the near future. I would certainly be willing to be a guinea pig!

Baby Steps along the Freedom Trail

As I have mentioned in previous posts, Massachusetts is not exactly on the cutting edge when it comes to enlightened procedural rules for jury trials. The default rules call for judge-conducted group voir dire in open court. This is not a recipe for a lot of information revelation by jurors. When Diane Levesque and I conducted a workshop for Massachusetts Bar Advocates this Spring on jury selection techniques, there were lots of old-timer naysayers in the audience who were convinced that no judge would ever let them try any of the things we were advocating. It should be noted, however, that several of the Commonwealth's more noted judges were expressing a willingness to try attorney-conducted voir dire, if only someone would request it. It was clear that we were stuck in a bad equilibrium.

Maryellen Cuthbert, a board member of Middlesex Defense Attorneys, Inc., is the person who invited Diane and myself to conduct our workshop back in April. In light of the reaction we received to that program, we decided that someone needed to lead the way, showing that modern jury selection techniques could be effectively applied in Massachusetts. So, Maryellen brought me on board for a tricky statutory rape case she was defending. The case involved an alleged sexual incident between a 19 year-old recent high school graduate and a 15 year-old high school Sophomore. Due to inconsistencies in the complaining witness's story, as well as the absence of any physical evidence, the Commonwealth dropped any charges involving consent and tried only the statutory count.

I have been helping Maryellen develop presentation strategies for opening and closing statements, as well as strategies for cross-examining an alleged victim in a delicate matter -- and one in which the outcome rests entirely on the credibility of her testimony. Much of my time and input has been dedicated to jury selection.

The first order of business was to get the judge in the case to adopt procedures that had some hope of eliciting some relevant information about jurors' experiences and attitudes. In this case, we had a bit of a head start because both the nature of the charge and the fact that the defendant and complaining witness were of different races triggered some individualized voir dire. It was still up to the judge, however, to decide which questions would be asked, who would ask them, and exactly which procedures would be used. We employed a multi-pronged attack with respect to motions:

1) We submitted a request for attorney-conducted voir dire, to which we attached citations to several studies that showed empirically (a) that jurors were more forthcoming when attorneys asked questions than when judges did, and (b) that jurors often revealed pertinent information during individualized voir dire that they declined to reveal during group voir dire.

2) We submitted a list of questions to be asked by the judge during both group and individual voir dire, should our request for attorney-conducted voir dire be denied. The individual voir dire questions were generally worded in an open-ended fashion, so as to elicit detailed responses, rather than just "yeses" and "nos." Here too, we submitted a list of studies showing the superiority of open-ended questions for eliciting relevant information.

3) Given the infrequency with which jury consultants are used in Massachusetts, especially for criminal trials, I suggested to Maryellen that she inform the judge in advance that I would be sitting at counsel table for jury selection. In addition, Maryellen impressed on the judge how important it would be for me to attend sidebar sessions during voir dire, so that I would be able to evaluate the words and demeanors of prospective jurors. The judge didn't seem to know what to do with this idea, so she took it under advisement and invited both sides to submit additional material regarding such a procedure. This is the point at which the ASTC membership really came through for me. The American Society of Trial Consultants maintains a very active listserve for its members. On a Friday afternoon, I sent out a plaintiff call for lists of cases in which consultants had been permitted both at counsel table and sidebar during jury selection. Several ASTC members combed through their files over the weekend and sent me lists of cases. I put them in a nice table and Maryellen sent them to the judge on Monday morning.

4) Maryellen requested a struck method for exercising peremptory challenges. This particular charge allows each side 12 peremptory challenges in Massachusetts. Given that we were also seating alternates, each side actually had 14 strikes. We would certainly be able to emply them more efficiently if we could wait until the entire panel had been voir dired.

In the end, here's what we got:

First, the good news. I was permitted to sit at counsel table during all of jury selection. In order to work around the sidebar issue, the judge sent the entire jury panel away immediately after group voir dire. She then brought them in one-by-one for individual voir dire. The juror would sit in the witness box and the judge would explain that we were using this procedure to protect the privacy of the juror. This set of procedures was excellent from our prospective. Jurors were generally forthcoming and we had time to consult between jurors as one would leave and the next one would come in.

Now, the less good news. The judge insisted on asking all of the questions. While she did ask a few questions based on items we had submitted, she tended to revert to non-productive question structure. That is, she asked yes-or-no questions that required jurors to evaluate their own attitudes of prejudices. For instance, she asked each juror, "Do you believe that the presumption of innocence should apply equally to all races?" Obviously, no-one is going to answer "no" to such a question. There were several prospective jurors whose answers ended up being nothing more than a predictable series of "yeses" and "nos". To her credit, the judge did seem to pick up on this problem fairly early on. Unfortunately, her typical method of getting jurors to talk about themselves was to ask them about their jobs. Not generally relevant to our case. When a juror did reveal information that was directly on point, such as having a sibling who had been the victim of sexual abuse, the judge was fairly adept at getting the juror to discuss his or her feelings about the experience. The judge also required the attorneys to exercise their peremptory challenges on a juror-by-juror basis. This only hamstrung us a little. I think that we only let on one juror that we might have challenged using a struck system.

I think that the judge was actually fairly pleased with how jury selection proceeded. It went more quickly than she had feared. She also noted that several jurors who had failed to raise a hand in response to a particular group voir dire question ultimately revealed during individual voir dire that he had been holding something back. As a result, on the second day of jury selection, she asked each prospective juror whether, in thinking about the questions over night, he or she might want to change an answer. Many of them did volunteer information at this time, typically about experience with violent crime or sexual abuse. Since pretty much every person who had some experience with such abuse was excused for cause, the increased candor associated with individual voir dire definitely worked in our favor.

This case is about to go to closing arguments. So, I don't know whether we will win. I am confident, however, that we have selected a jury whose members will actually have a meaningful conversation about the relevant issues in the case. I don't think we can ask more much more than that.

I did also score a big victory on another front. While I took on this case as part of the ASTC Pro Bono Initiative, I asked Maryellen to petition the court for state funds for my services (at a substantially reduced rate). The judge actually approved the request. So, to the best of my knowledge, I am the very first trial consultant to receive state funds in Massachusetts. So, if you have a tough case for an indigent client, and you need the help of someone like me, the precedent has been set! Of course, even should the request for funds be denied, our pro bono team is still here to help.

I have two more criminal cases in the pipeline and I'll be sure to report on any progress in bringing Massachusetts criminal procedure into the 21st century.

Dynamite Charge might Blow Up in Judge's Face

A Tennessee jury was having trouble reaching a verdict in a major medical malpractice case. The doctor, Michael Goodman, was being sued for $12 million. His patient, Kristen Freeman, went into cardiac arrest, following a colonoscopy performed by Dr. Goodman, and suffered permanent, debilitating brain damage.

After two days of deliberations, the jury informed Judge Jacqueline Bolton that they were deadlocked and could not reach a unanimous verdict. After reminding the jurors of the time, expense and emotional energy that had been invested in the case, Judge Bolton proceeded to give the jury a very strong version of an Allen, or dynamite charge:

If a substantial majority of your number are in favor of finding a verdict, those of you who disagree should reconsider whether or not your doubt is a reasonable one, since it appears to make no effective impression upon the minds of the others.

According to affidavits from four jurors, this instruction caused them to rethink whether each juror was responsible for evaluating for herself which verdict would be correct. Rather, they felt as if the judge had suggested that they acquiesce to the majority position if that position had been resistant to arguments from the jurors in the minority.

One juror stated

When I heard the additional instruction again, I felt the court was instructing me to abandon my opinions and agree with the majority so that the case could be resolved by this jury and not have to be retried.

The jury ultimately found Dr. Goodman 51% responsible, which generated a damage award in excess of $6 million.

In light of the Allen charge and the subsequent affidavits, the defense is filing an appeal, alleging, among other things, judicial misconduct.

The unanimity rule employed by Tennessee is a major culprit in this drama. We know that at least two-thirds of the jury was genuinely in favor of finding for the plaintiff in this case. Would it have been more "just" to have found for the defense? That would implement tyranny of the minority. Would a hung jury have been a superior result? Well, if the entire matter has to be retried, the ultimate result would be that one side or the other would prevail. Why not let the first jury take care of that? This jury seemed pretty conscientious. Do we have any faith that the next one would be "superior" in any way?

Ultimately, several jurors in this case voted "insincerely." Four of them voted to hold the defendant liable despite the fact that they didn't really believe it. The 51% responsibility assigned to Dr. Goodman suggests a compromise: the members of the majority coalition agreed to reduce the doctor's responsibility level as low as possible, while still permitting the plaintiff to collect. It seems as if the jurors who wanted to find for the plaintiff didn't vote their true position either.

The courts have long turned a blind eye -- or a knowing wink -- to this kind of behavior by jurors. Judges know that holdouts are coerced into going along with the majority. They know that jurors cut deals to find a compromise they can all live with. The Allen charge is a not-very-subtle endorsement of this kind of "creative" verdict crafting. Most verdicts reflect only one kind of true unanimity: a unanimous willingness to suspend the rules in order to generate a verdict.

So, the legal fiction that is unanimity soldiers on. Meanwhile, the courts choose to ignore the implications for the legitimacy of our civil jury system (I have written extensively about the problems with unanimity in the criminal context elsewhere). Jurors are jaded about the fairness and transparency of our court system. Such an attitude can only be reenforced when the jurors themselves are forced to cut back-room deals to resolve cases. The slavish commitment to unanimity also leaves a trail of anguished jurors who have been forced to check their principles at the door in order to churn out a verdict. Regret of the sort experienced by the jurors in this Tennessee case is not uncommon. I have to think that they would have slept better at night had they been permitted to vote their consciences, even having been out-voted in the end. People don't mind losing, so long as they feel that they have had a chance to speak their piece and that the rules of the game were fair.

As for this particular appeal, I think that the defense has an uphill battle. One obstacle is the prohibition against jurors serving as witnesses with respect to their deliberations. Federal Rule of Evidence 606(b) (and its state counterparts) forbids jurors from testifying about their deliberations, or mental processes associated therewith, after a verdict has been handed down. There is an exception carved into the rule for "extrinsic influences" on the deliberations. This category typically includes unauthorized research by jurors, juror tampering and exposure to publicity about the case. I believe that the jurors can only testify about the effects of the judge's instructions if there is a "substantial risk of a miscarriage of justice" associated with the judge's alleged error.

I do not believe that an appellate judge is likely to be sympathetic to the defense claims here. After all, this kind of jury behavior happens all the time. The only difference here is that the judge chose to articulate what usually remains unsaid.

Community Attitude Surveys: Cheap, informative, effective

It was reported yesterday in the Modesto Bee that two-thirds of those surveyed already believed that Columbus Allen Jr. is guilty of killing California Highway Patrol Officer Earl Scott. Allen's defense team is attempting to use the survey in support of a change of venue motion, but the judge seems unlikely to grant the request. It is instructive to read the stream of vitriol posted by readers commenting on the article.

My god, they should of tried him the moment they arrested him... OFF TO THE GALLOWS BOY!

The evidence is clear. He killed Earl Scott. He is guilty, nothing else left to discuss, time for him to suffer and die a slow slow death.

This poor excuse for a life form was stupid enough to show up later with gunshot residue on his hands and arms. i am willing to bet he wasn't at the gun range practicing. guilty. fry him. this society is already paying for enough criminals and cannot afford them.

Of course everybody knows he's F*%&ing guilty! He murdered a CHP officer on 99 when everyone was commuting. I still remember that morning driving past that grim scene.
Why has this trial been put-off for so long? Get it the hell over with and sentence him!

Of course, this is a murder case, with lots of pretrial publicity. We should not be surprised to see strong public attitudes. In addition, the defense team has conducted the survey to achieve a very specific purpose: get the trial out of Stanislaus County. That said, a community attitude survey can be extremely helpful for civil litigation, as well.

Imagine you are defending a hospital in a medical malpractice case. Wouldn't it be useful to know whether the hospital is held in high esteem, as compared to others in the community? Are the people in this jurisdiction particularly dissatisfied with the quality of healthcare they receive? Is there an ongoing shortage of primary care physicians, causing patients to wait for appointments? Has the "torts crisis" argument taken hold in this community? These are all questions that can be answered with a community attitude survey. A survey of hundreds or thousands of people can be conducted for less money than a one-day focus group study with only a handful of subjects.

The judge in your case has authorized the use of a supplemental juror questionnaire, but she has made it clear that it is NOT going to be 75 pages long. She orders you to get your act together and submit no more than a dozen case-specific questions. How do you decide which questions to use? (After all, your trial consultant has written more than 30 truly outstanding questions for you) Commission a survey with your top candidate questions. This provides you an opportunity to analyze the responses of jury-eligible members of the community. You will undoubtedly discover that some questions just don't generate any useful range of answers. Others produce responses that don't seem to correlate with attitudes related to the case. The key is to find those questions that effectively distinguish between people who seem generally sympathetic to your case and those who do not. Now you can submit your short list of questions to the judge with confidence that they will produce results in jury selection.

Surveys have several advantages over other methods of pretrial research.

First, a survey typically involves many more subjects. This means more data and more confidence in the results.

Second, a survey can be conducted in the background while the trial team is busy taking care of other matters. There is no need to find a date on which the entire trial team, witnesses, parties and trial consultants can all be in the same place at the same time.

Third, since a survey is conducted without direct involvement of the trial team, subjects can be recruited for subsequent interviews or focus group study without the "contamination of advocacy." So, a survey can be a preliminary research step. leading to more targeted efforts.

Fourth, a survey can be tweaked as it is being conducted. Obviously, the analysis of any particular set of responses is limited by the number of subjects who were asked the same question. There is not harm, however, in figuring out halfway through that you really should have included a question about home foreclosures. The survey research company can include it for all subjects from that point forward. It is much harder to tweak a focus group or mock jury study in the middle.

While it is unlikely that an entire community will have decided on a verdict for your case in advance (although it could happen), a survey can help you identify pervasive attitudes among the people who will be comprising your jury. These attitudes will shape the lens through which jurors will be viewing your case. To stretch the metaphor a bit, you can't grind the right set of corrective lenses (your case presentation) until you know what prescription is needed.

From the ASTC Conference: Effects of the Economy on Jury Trials

I recently returned from Atlanta, where I was attending the annual conference of the American Society of Trial Consultants.

A lot of informal discussion, at the breaks, in the halls and at the bar, centered around the effects of the economic downturn on juries. What were they doing differently now?

Beth Foley chaired a session on the effect of the economy on damage awards, but the discussion freely flowed into behavioral areas other than damages. No-one really had any data, per se, unless you think of data simply as the plural of "anecdote." That said, there were some interesting conjectures offered, some of them supported by personal experiences with trial juries or mock jurors.

Welcome to jury duty, Mr. Executive Vice President for South Asian markets.
Several attorneys and consultants noted that massive layoffs of white-collar workers has resulted in executives being available for both pretrial research and actual jury duty. This is generally seen as beneficial for corporate defendants because these professionals will understand the decision-making structure of business better than typical jurors. They won't be so quick to adopt the "zero-risk fallacy" or assume that all corporate mistakes are the result of negligent conduct.

Let's not break the bank here!
Tara Trask commented that she had seen a definite upswing in arguments by research subjects pertaining to driving companies out of business. People have watched seemingly indestructible multinational conglomerates go under in the past year. This has increased sensitivity to the vulnerability of all companies. Jurors may think twice about an award large enough to bankrupt a company that provides jobs in their own community. Certainly, such arguments can no longer be dismissed out-of-hand.

I'm so mad, I could just spit!
There continues to be a lot of pent-up hostility towards big companies and firms in the financial sector. We know that jurors give vent to their desire to punish corporate defendants when calculating compensatory damages, despite instructions to only consider such factors if punitive damages are warranted. In the present environment, I would expect the desire to punish to infiltrate these values even more.

Where's the check with my name on it?
There has been a lot of discussion lately about the value of identifying jurors with a "just world" attitude towards the world. There are several versions of this perspective. The more people who feel themselves to have been "mistreated" by the world, perhaps because they have been laid off or have lost a house of foreclosure, the more potential jurors there are who will be reluctant to give a "hand-out" to someone else. The thinking is along the lines of, "Hey, times are tough. We've all suffered. You don't see anyone giving me free money, do you? Why should I bail out this guy?" I would think that any plaintiffs attorney would do well to probe for such attitudes during voir dire.

I wish I could tell you, kind readers, that we have reams of definitive data, pinpointing exactly how the current economic climate is affecting verdicts and damage awards. Alas, all we really have are some basic trends, a few anecdotes and thoughtful speculation from some pretty intelligent and experienced jury experts. I am afraid it will have to do for now.

For those of you who might be new to The Jury Box Blog, you can read a couple of pieces I have previously published on my own perspective on the connections between economic climate and damage awards here and here.

The Connection between Emotional Hotspots and Lying

As promised, I write today about the second workshop conducted by David Matsumoto at the American Society of Trial Consulting Conference. While the Thursday afternoon session on reading facial expressions (and "microexpressions") lasted three hours (please see previous post), the session on lie detection was only one hour long. So, he had a lot to cover in a short span of time. To his credit, David is an excellent public speaker. He's funny, articulate, clear and responsive to questions.

Most of the session was devoted to understanding, identifying and recognizing emotional "hotspots." A hotspot occurs when subconscious, emotional cognition runs contrary to conscious, logical cognition. Such occurrences put a lot of pressure on one's brain, making it difficult to focus and control. Imperfect control results in emotional "leakage." A person who is trained to detect microexpressions can catch such leakage as it happens.

For example, a candidate can say something nice about his opponent, but he crinkles his nose for just a split second. The expression of disgust has leaked out. The beauty pageant runner-up allows a one-sided look of contempt to cross her face for a millisecond before she successfully plasters a big, fake smile back on her face.

There are gestural cues to look for, as well. For instance, David showed the video of Alex Rodriguez answering a question from Katy Couric about the use of performance-enhancing drugs. He answers "no" very definitively -- while nodding his head up and down at the same time.

David was very careful to point out that a hotspot, with associated emotional leakage, is only a sign that there is some disconnect between the speaker's words and his emotions. Lying is only one possible explanation for such a disconnect. Leakage can also be the result of cognitive dissonance, ambivalence or extreme uncertainty.

So, for us consultants, the key is to identify hotspots. That suggests that lying might be taking place. Additional investigation and/or interrogation is necessary to tease out what is causing the emotional disconnect.

So, what should I do now with my cursory training and heightened awareness of emotional leakage and hotspots? Well, I'm not quite ready to market myself as an emotional cue expert, who can help lawyers identify lying jurors or witnesses with precision. That said, I will certainly look for microexpressions when reviewing footage from focus group sessions. I will keep an eye out for microexpressions from a witness I am helping to prepare. An obvious hotspot can help me identify a line of inquiry that might be tricky for the witness.

I am curious to see how useful this heightened sensitivity to facial expressions might be moving forward. Please feel free to contact me if you'd like to chat about my experience with this program.

On Monday, I'll file a new post with some additional observations, lessons and stories from the conference. Tomorrow, it's golf at East Lake! Fore!!!!!

Reading emotions of witnesses, jurors and lawyers

I am currently in Atlanta, attending the annual conference of the American Society of Trial Consultants. Yesterday afternoon, I attended a very interesting presentation by David Matsumoto, who works for the Ekman Group in San Francisco. In case you don't recognize the name, Paul Ekman is the expert on lie-detection on whose work is based the television series, "Lie to Me."

David was conducting a training session on recognizing emotional state from facial expressions. I must admit up front that I was a bit skeptical of these methods. I am now convinced that they are really onto something. It takes a while to get to the punch line, so please bare with me.

It turns out that there are seven basic emotions that can be accurately characterized by unique facial expressions.

Anger: brows down, glaring, lower jaw forward.
Disgust: wrinkled nose, raised upper lip
Surprise: raised eyebrows, open mouth, relaxed muscles
Fear: raised eyebrows, tense mouth, very open eyes (lots of white showing)
Contempt: only uses one side of the face, smirk
Sadness: Inner brows raised, corners of lips droop, lower eyelids droop
Happiness: corners of lips raised, eyebrows relaxed

David showed us a number of examples and trained us how to look for the signs of each emotion. He spent extra time on distinguishing fear from surprise, and sadness from disgust. We all got pretty good at identifying emotions properly from images.

David then discussed how cognition and emotion often battle for control of the face. A person is consciously attempting to convey one emotion, or stay neutral, while emotionally, they are pulled towards a different expression. Very often, the true emotional state "leaks out" through "microexpressions." These microexpressions can last for only a fraction of a second, so they can be difficult to catch and properly identify.

David showed some examples from press conferences and witness testimony. He could slow down the video and show us exactly when a lip curled, an eyebrow drooped or a nose wrinkled.

The next step was to get us accustomed to detecting changes in facial expression in, literally, a blink of an eye. I really thought I was missing it. I felt like I was guessing all the time. I decided to focus on just the bridge of the nose, or try a "soft focus" technique. His computer program would change the face and then return it to normal so fast that sometimes I missed it completely. "OK," I thought, "this is hopeless unless you have a high speed camera and enough time to analyze the footage. What the heck am I going to do with this?" But I did seem to be getting a bit better.

Finally, after a little more than one hour of training, he showed us a series of 28 faces. He would put up a face in a neutral state and then hit a button, which would change the face to an emotive expression for less than half a second. David told us that this is the top speed at which his team trains people (like police officers, military personnel, HR professionals). As each face appeared, then changed for only an instant, we had to write down which of the seven emotions we thought we were detecting. This was our test.

Certain emotions were pretty easy to detect. For instance, since contempt only involves half the face, it was fairly straightforward to notice that the expression only changed on one side. On a lot of them, I really felt like I was guessing. But, as it turned out, I wasn't. Astonishingly (especially to myself), I correctly identified 23 of 28 expressions (82% correct). This was at the high end of the distribution for the 100 or so people in the room. There were plenty of people hanging around 50%. Still, I was pretty impressed. This could really be done.

This morning, I attended a second session conducted by David Matsumoto, this one specifically focusing on lie detection. The key is to identify situations where there is a disconnect between verbal message and emotional "leakage." I'll post a blog entry describing that session tomorrow. Stay tuned!

How the Economy will affect jury damage awards

I published the following as a letter to the editor in the June 1 edition of Massachusetts Lawyers Weekly. The original article to which I make reference is well worth reading.

Trial consultant: beware of current juror reasoning

Published: June 1, 2009

To the editor:

Jocelyn Cinquino published a very interesting piece ("Impact of the economic downturn on juror reasoning," May 11) on the current economic climate's likely impact on jury decision-making. It should come as no surprise that this topic has been hot in the trial consulting community. There has been a lot of chatter about this on the American Society of Trial Consultants listserv and several sessions will be devoted to the topic at our June conference.

Cinquino's remarks largely mirror those I have heard from other consultants, and I think she has given a nice survey of current thinking on the topic. That said, there are a couple of specific points absent from Cinquino's piece that deserve some mention.
While predicting damage awards is a very tricky proposition, largely because jurors' monetary calculations tend to be all over the map, we do know something about the strategies that jurors tend to employ when thinking about damage awards.
The most common technique is known as the "anchor and adjust" strategy: A juror latches onto some tangible number that seems relevant to the damages calculation (or just in the right ballpark) and then adjusts up or down, depending on the persuasiveness of various arguments. The most common and influential anchor is the plaintiff's ad damnum. Other notable anchors are statutory damage caps and awards from famous cases.

In a state such as Massachusetts, without ad damnum requests, jurors look elsewhere (and seemingly everywhere) for anchors. Commonly used anchors include housing prices, annual salaries, pension benefits and school tuitions. It is important to realize that jurors use their own subjective estimates of these values, e.g. "My aunt Martha just sold her house in Methuen for $175K."
In a depressed economy, jurors' estimates of these anchors understandably will be lower than those associated with economic prosperity. I believe that this "sunken anchor" effect is probably the most important one driving down damage awards.

The second point I'd like to make concerns securities litigation and other suits related to the financial industry. I recently worked on a case involving the aftermath of a Ponzi scheme. We ran pre-trial research on the case in the form of a multi-panel, full-day focus group study. We learned many interesting things about the public's perception of the financial sector.
Most were fairly predictable and intuitive, such as suspicion of banks or a call for more regulation. One moderately surprising result was the inability (or lack of inclination) of people to differentiate between risky investment strategies and outright theft. Our subjects perceived the actions of hedge fund managers, sub-prime mortgage lenders and investment advisors as being simply different forms of fraud.

While they were happy to crucify the person in our case who had stolen money from his clients, they considered Lehman Brothers and Citibank also to have "stolen" billions of dollars. Perhaps due to lack of sophistication about the financial services industry, most people think of the sub-prime mortgage mess as a giant Ponzi scheme. Be prepared to run into resistance if you plan to defend a bank or investment house on the grounds that what they did was "completely legal."

Wish list for the next Supreme Court Justice

Despite my tremendous, if not obvious, qualifications, I don't think that phone is going to ring. So, if I'm not going to be appointed to the Supreme Court, who should be? Glad you asked. I could throw out a few names, but I don't think any of my nominees would have a shot in hell of confirmation. So, in lieu of an actual name, I will instead provide a list of qualifications (dare I say litmus test?) to be met by a Supreme Court Justice. While there are, of course, many critically important constitutional issues facing the Court, I will focus my attention here on those related to juries.

1. The Death Penalty is Unconstitutional
I am not arguing that the death penalty is never an appropriate punishment for a crime. I am rather agnostic on the subject. Rather, given that juries must decide sentence in capital cases, the application of the death penalty is so arbitrary and capricious as to be unconstitutional. There are many reasons for this, and most of them will never go away. Jury instructions on capital sentencing are incomprehensible and errors by jurors almost always lead them to vote for the death penalty in cases in which a proper understanding of the instructions would have led them to vote against it. (See Weeks v. Angelone, Free v. Peters and many others). While we understand a good deal about how jurors decide cases on the merits, the processes behind sentence or damages calculations remain essentially a mystery. We have failed, using the best social scientific techniques, to produce a model that predicts, with any degree of satisfactory precision, how jurors choose sentences. As of now, the only variable that seems to differentiate between offenders who receive the death penalty from those who do not is the race of their victims -- hardly something one which to hang one's hat. The admission of victim impact statements during capital sentencing hearings permits non-probative, emotionally inflammatory testimony to infect an already nebulous, emotionally charged process.

2. Reverse Lockhart v. McCree.
If the death penalty is going to stick around, it is time for the Supreme Court to get its collective head out of the sand regarding the impact of death qualification. Repeat after me: Death qualified juries are more likely to convict than normally chosen ones. Rehnquist's opinion in this case was just plain stupid, not to mention disingenuous. He hides behind the convenient legal fiction that an impartial jury is one made up of "impartial jurors." In Lockhart, he wrote that since McCree's jury could have been selected randomly (even though it wasn't), and none of the individual jurors were shown to have been biased against the defendant (How could they have been?), their verdict must be legitimate. By Rehnquist's logic, every jury is impartial, provided that none of its members admit to hating the defendant. This highlights a general point about jury impartiality. It is time to finally kick to the curb Rehnquist's definition and recognize that the only internally consistent definition of jury impartiality is that associated with a jury "impartially chosen."

3. Reverse Williams v. Florida
The empirical evidence is overwhelming that smaller juries are inferior to larger ones in many ways. First, by simple statistical theory, the larger the jury, the more likely it is to reflect the true distribution of attitudes, values and experiences in the community from which it is drawn (putting aside peremptory challenges for now). This is simply an application of the law of large numbers. Studies have shown that larger juries tend to correct factual errors made by its members more regularly than do smaller ones. Larger juries are also less likely to be "hijacked" by one zealous juror. Obviously, the jury needs to be small enough so that they can effectively deliberate as one body, but six jurors are too few. I think that the ideal number is probably something in the range of 15. That said, the Constitutional question is only whether a jury of six is sufficient to do the job. The answer is clearly "no."

4. Recognize the full implication of Batson v. Kentucky
The key component of the holding in Batson is the identification of the peremptory challenge as a "jury selection practice that permits those to discriminate who are of a mind to discriminate." As such, the logic applies equally to any jury selection practice that runs a similar danger of discrimination. Subsequent cases have defined "state actors" quite broadly within the context of jury trials. Prosecutors, defense attorneys and civil litigants are all state actors. As such, judges must surely state actors, as well. The following jury selection practices must fall under the purview of Batson and its progeny:

Choice of Venue. When pretrial publicity or some other factor requires that a trial be moved to a new venue, the judge is afforded great discretion over where the new trial is held. A judge who is of a mind to discriminate can easily do so by moving the trial to a location with a drastically different racial composition. This is exactly what happened in the case of Jerome Mallett, a black man accused of killing a white state trooper in St. Louis. The judge moved the case to a county near the Iowa border with no black residents. The Missouri Supreme Court held this practice constitutional on the grounds that Batson only applied to peremptory challenges. Justice Marshall wrote a compelling dissent to the US Supreme Court's denial of certiorari.

Death Penalty Prosecutions. Obviously, it is unconstitutional for a prosecutor to only (or disproportionately) seek the death penalty in cases involving minority defendants. But what of the decision to seek the death penalty in order to eliminate black jurors? We know that a greater proportion of African Americans oppose capital punishment than is the case for whites. We also know that death qualified juries are conviction prone. Therefore, it would be a perfectly rational strategy for a prosecutor to seek the death penalty in order to rid his jury of as many African Americans as possible, and in the process, increase his likelihood of securing a conviction. This decision should be governed by the holding in Batson v. Kentucky. The prosecutor should be required to offer a race-neutral explanation for the decision to seek the death penalty.

Judicial decisions on hardship requests and challenges for cause. Before either side gets to exercise their peremptory challenges, the judge determines which prospective jurors are eligible to serve. If a pattern emerges with respect to a judge's decisions about who is excused for hardship reasons (childcare responsibilities, job commitments, etc.) that seems to have a disparate impact on minority jurors, the parties should be free to make a Batson challenge. Again, the operative concept is whether someone "of a mind to discriminate" has the opportunity to do so.

5. Admit that Marshall was right about Batson
In his concurrence to Batson v. Kentucky, Marshall warned that the decision would do little to limit discriminatory use of peremptory challenges in practice. He argued that it would be too easy for prosecutors to invent a racially neutral explanation when necessary (See, for instance, Rice. v. California). He also argued that attorneys who believed themselves to be free from racial bias or animus would, nonetheless, be affected by subconscious racial bias when challenging jurors. That is, lawyers would be forever violating Batson without even realizing it. A recent study by Sam Sommers strongly confirms Marshall's worst fears. Marshall advocates eliminating all peremptory challenges, arguing convincingly that peremptory challenges are not constitutionally protected. It is worth noting that England, from whom we inherited our legal system, essentially eliminated peremptory challenges over 40 years ago. I have always been amazed that not one of the opinions in Batson v. Kentucky bothers to mention this historical fact.

6. Insist that all jury instructions be in plain English and be tested for comprehension.
Most states are moving in the direction of plain English jury instructions. That said, several still use lots of jargon, complicated sentence construction and multi-syllabic linguistic anomalies (fancy words), to the detriment of juror understanding. A verdict handed down by a jury that does not understand its instructions is surely arbitrary and capricious. Federal Rule of Evidence 606(b) precludes juror testimony about jury deliberations or the internal mental processes of jurors. As such, it is not possible to inquire, ex post, into whether a jury understood how to apply its instructions. The only solution is to make it Constitutionally mandatory for a state to test its jury instructions before they are codified. (Obviously, the states should be given adequate time to test existing instructions). While I would certainly encourage any jurisdiction to adopt best practices regarding the treatment of jurors during trial (note taking, juror questions, pre-case instructions, written instructions, etc.), I am not sure that any others approach Constitutional significance.

7. Reverse State Farm.
Most of the misguided steps taken by the Supreme Court over the past 30 years, with respect to jury trials, concern criminal cases. Recently, however, the Supremes have decided to expand their convoluted thinking to civil trials, as well. In State Farm, the Court applied some truly baffling logic to evaluating punitive damages. Perhaps we should not be surprised that this is where the Court's logic ran amok. Within the civil law sphere, punitive damages is the place where the jury most acts as the "conscience of the community." By punishing intentional wrong-doing, the jury is assessing a quasi-criminal penalty. So, the distrust that the Court exhibited towards jurors in this context is simply an extension of its distrust in jury decision-making in the criminal law arena. The conservative majority on the Court thinks that we mere mortals are too lenient towards poor people (so they have eroded defendant rights in criminal trials) and too harsh towards rich people (so they have enhanced defendant rights in civil trials).

Let's get one thing straight right off the bat. Everyone agrees that compensatory damages are meant to "make the plaintiff whole" with respect to any harm caused by the defendant. As such, the intent of the defendant is completely irrelevant, provided that the consequent conduct is deemed to have been negligent. Whether the harm was caused by a mistake or a deliberate act does not matter in the calculation of compensatory damages. By contrast, the actual harm suffered by the plaintiff is irrelevant to the calculation of punitive damages, except to the extent that it helps the jury evaluate the inherent dangerousness of the defendant's actions. That is, the jury is trying to calculate the expected harm associated with the defendant's gross negligence, so as to determine how irresponsibly the defendant acted. The actual damages suffered by the plaintiff need not have any relationship to this expected harm.

As a further wedge between compensatory and punitive awards, remember that the deterrent goal of a punitive award requires that the expected harm be multiplied by the inverse of the likelihood that the abhorrent act would be detected, brought to light and successfully litigated. So, if the jury thinks that there is only a 5% that the perpetrators would be caught and successfully sued (perhaps due to the defendant's subterfuge), the expected harm should be multiplied by 20 to properly punish the wrongdoers.

That said, the Court spent considerable time, space and effort turning this logic on its head. Expressing concern that one large judgment could bankrupt a large corporation, the Court pronounced that, as a general rule of thumb, a punitive award should not exceed ten times the corresponding compensatory award. The majority seemed particularly worried that a company would be asked to pay punitive awards in multiple jurisdictions for essentially the same evil act. We should note, however, that, after remands and much hemming and hawing about jury instructions, a very large punitive award in an Oregon tobacco case was permitted to stand.

To further understand the flawed logic of State Farm, consider the following example. An oil company neglects to install double hulls in one of its tankers, contrary to federal law. Close to port, the tanker runs aground during unexpected bad weather, leaking most of its oil into the surrounding water. If the tanker hit the rocks on its way into port, it would spill millions of gallons of oil into the bay, creating a major ecological and public health disaster. If, on the other hand, the tanker hit the rocks on its way out of port, after unloading, it would create a very small oil slick that could be contained and cleaned up within a matter of days. The inherent reprehensibility of the conduct (failing to install double hulls) is identical in both cases. The actual harm caused, however, differs by a factor of millions. Should the punitive award faced by the oil company be essentially eliminated because they got lucky about when the tanker ran aground? The State Farm decision says "yes," but simple logic says "no."

This line of cases needs to be reversed before it gets too firmly entrenched as precedent.

I believe in the American jury system. I think that jurors are to be respected and should be given all the resources possible to succeed in their very important tasks. it is vital that the jury-related decisions of the Supreme Court move in the direction of a jury that is fairly chosen, clearly instructed and properly empowered. That's not too much to ask, is it?

Jury Selection Tricky Guessing Game in MA criminal trials

On Saturday, April 25, I participated in a training session for Massachusetts Bar Advocates, sponsored by the Middlesex Defense Attorneys, Inc. First, let me thank Maryellen Cuthbert for the invitation and for organizing a very interesting program. Diane Levesque and I were the trial consultants charged with introducing the assembled throng to the concepts behind effective supplemental juror questionnaires and attorney conducted voir dire.

The first thing to note is how far in the Dark Ages is Massachusetts when it comes to adopting "best practices" in jury selection. I used the phrase "repressed Puritans" during my remarks, which might not have sat well with everyone. There is just no getting around that Massachusetts is a VERY conservative legal culture.

I put up a slide identifying several dimensions of jury selection procedures, with one column for the "restrictive procedure" and one column for the "expansive procedure." Massachusetts fell in the "restrictive" category FOR EVERY SINGLE DIMENSION. So, the bad news is that jury selection in Massachusetts is about as big a low-information crap shoot as there is going. The good news is that we have nowhere to go but up!

There were approximately 110 attorneys in attendance. I asked how many of them had ever used a trial consultant in any of their cases. (Remember now that most of these folks also handle civil cases). NOT A SINGLE HAND WENT UP. That's right. No one had ever used a trial consultant. So much for the quote, attributed to an attorney in Atlanta more than 10 years ago, that to go to trial without a jury consultant would "border on legal malpractice."

Many of the attorneys, some of whom had decades of trial experience, were very pessimistic about the willingness of Massachusetts judges to open up jury selection, at all. Maryellen had warned me to expect this response. She believes -- rightly so, I think -- that the criminal defense bar must make a concerted effort to change the status quo. The mindsets of Massachusetts judges will only begin to change if all the Bar Advocates start asking for the same procedural accommodations, and offering the same arguments in favor of those accommodations. So, one of my charges was to provide for the attendees a list of advantages to using supplemental juror questionnaires and attorney-conducted voir dire. This list is not targeted at the lawyers alone, but also at the judges whom they must convince to "loosen things up." That is, I tried to provide strategic, practical and legal arguments for employing less restrictive procedures.

To be fair, I have been at several local events at which judges have expressed a willingness to allow attorney conducted voir dire, but they always lament that no one ever asks for it! Hopefully, armed with some of the information and advice Diane and I offered on Saturday, some of these attorneys will get more involved in jury selection.

I have attached my presentation slides below. For articles I have written on supplemental juror questionnaires and voir dire, please follow these links. SJQ article. Voir dire article.

"Podcasts killed the radio star" -- what to do about googling jurors.

OK. If anything, podcasts are creating radio stars. Take me, for instance. I was a guest on the latest podcast of "Lawyer2Lawyer," produced by the Legal Talk Network. Along with attorneys Peter Raben and Sean Ellsworth, both of Miami, FL, we were interviewed about the recent spate of mistrials brought on by jurors who conducted unauthorized online research. Peter and Sean were the defense attorneys in the federal drug trial whose mistrial inspired John Schwartz's New York Times article a few weeks ago. When the judge interviewed the jurors to find out how one juror's google search had infected their deliberations, he discovered that eight other jurors had been looking up items related to the case online.

It was fascinating to hear Peter and Sean discuss the various pieces of information the jurors had dug up online. They were quite industrious! In addition to reviewing what happened in their case, we discussed what should be done in the future to reduce the incidence of this kind of behavior by jurors.

You can listen to the mp3 version of the podcast directly by clicking here.

You can go to the Legal Talk Network download site for the podcast by clicking here.

Please leave me comments and let me know what you think of the show. Thanks!

Jury aborts attempt to prosecute Kansas doctor

After only 45 minutes of deliberations, a Kansas jury has acquitted Dr. George Tiller on all counts of violating the state law against performing a late-term abortion without a supporting second opinion. To refresh your memories, Tiller is one of the few doctors in America who still performs late-term abortions, what pro-life supporters refer to as "partial birth" abortions. Under Kansas law, a doctor can only perform this procedure after the patient has received a second opinion, concurring in the judgment that the pregnancy is a danger (physical or mental) to the mother. The Kansas law prohibits the doctor issuing the second opinion from having any financial relationship with the doctor performing the procedure. The State, in this case, alleged that Dr. Tiller had close financial ties to the doctor who issued virtually all of his patients' second opinions. According to the prosecution, she was little more than an employee of Dr. Tiller's clinic.

So, while the case incited passions about abortion, with accompanying protests, sit-ins and prayer sessions outside the courthouse, it was really a case about money. Did the jury believe that Dr. Tiller essentially paid Dr. Neuhaus to always agree with his diagnoses so that he could perform abortions? The answer was a resounding "No." Most juries take 45 minutes to choose a foreperson and figure out what to order for lunch. So, this jury seems to have concluded that this case was not a close call.

I find the result of this case encouraging because it provides evidence that jurors, even in a case laced with controversy, emotion, pressure and pre-trial publicity, were able to focus on the relevant facts and applicable laws. This jury clearly did not make this case a referendum on abortion. Rather, they answered the very narrow set of questions given to them by the court about the financial relationship between Drs. Tiller and Neuhaus.

Many pundits rip into juries for being irrational, flighty and beholden to emotion. Such pundits often have little to support their assertions beyond an occasional anecdote or conjecture about why a jury chose a particular verdict. My experience leads me to conclude that most jurors are serious and conscientious. They would rather have a well-defined decision task and clear legal instructions. If the lawyers and judges do their jobs, most jurors can be counted on to do theirs.