The discussion of juror stress resulting from getting up close and personal with disturbing and graphic images has been around for a while now. A recent story that was brought to my attention through a contact in the American Society of Trial Consultants got me thinking about where I stand on the topic. Is this all being blown out of proportion or have we been scarring jurors for hundreds of years? Of course, reality is probably somewhere in between and it (of course) depends on the juror. If nothing else, this line of thought had me recalling an interesting conversation I had with a reporter from a major metropolitan newspaper a few months back about possible juror misconduct in a murder case.
The reporter had called me to find out what I thought about the issue. Apparently one of the jurors was claiming the arguments from some jurors had crossed into coercive territory and that juror was upset about what that theybelieved to be misconduct.
After laying down caveats that I was unfamiliar with the details of the case, I told the reporter that this sort of jury misconduct was often difficult to prove. The reporter seemed surprised and asked me why. I mentioned that while it was fairly easy to determine the sort of jury misconduct that comes from not following judges orders (e.g., "Googling" about the case), "coercion" is often a misunderstood term. Coercion is simply to "achieve (a decision) by force or threat " and it is the good ol' alternative to actual persuasion.
I asked the lawyer if any threats had been made. The reporter said that he hadn't heard of any. I told the reporter that if they find a threat then they have found misconduct, other than that, he may be looking at something far more gray. For example, this could be the case of a passionately delivered argument by a juror that may have raised their voice or become otherwise emotional with a conflict-avoidant juror. I explained to the reporter that some people manage to avoid conflict for years only to be forced to face conflict during jury service. I found out this explanation described this case appropriately some time later.
It occurred to me that this sort of conflict-avoidant juror was precisely the type of juror that may actually develop a disorder from jury service. Should conflict-aviodant, squeamish, or otherwise empathetic citizens not serve because of their dispositions? Of course not. While I don't believe Juror PTSD is the sort of thing that we need to overreact to. It is the sort of thing that we need to be responsible about. If someone feels that they could use some psychological assistance as they come off of a trial they found to be difficult than the system ought to provide some reasonable assistance for them. However, the jury system we have in place must not ever become an avenue for additional litigation. The idea that a juror can sue the state or federal government for emotional damage is the sort of line that shouldn't be crossed.
Posted May 11, 2008 10:13am by Christopher J. Dominic.
Cheap Jury Research
I'll confess to having a bias here. I'm not a big fan of what I refer to in the title as "Cheap Jury Research." However, it's not the "cheap" part that leads to my distaste. It's the limitations of the research that typically goes with the "cheap." If our clients have confidence in the findings of a research project, alter their strategy, and then go off to trial and get a big surprise--well, it's not good for anyone.
With this said, every project is different and sometimes it makes sense to not put as many resources into one portion of the project or another depending on the research goals. The key here of course, is that the client understand the limitations. The quickest way to learn what the list of factors are can be found in an excellent article entitled "10 Key Questions: Evaluating the Quality of Mock Trial Research" that was published in the August 2007 of DRI's Commercial Litigation issue. By actually using the 10 Key Questions as a checklist, the client can say "I'm okay with that limitation" or "I'm not okay with that limitation." This way, everyone involved in the project has more aligned expectations, the research is what it's supposed to be, and client satisfaction is better.
Posted Apr 27, 2008 08:02am by Christopher J. Dominic.
Overstated Claims on Shadow Juries
There’s no doubt that when executed well, what’s been come to be known as a “Shadow Jury” is a powerful tool that helps get good feedback to a trial team on how clearly and persuasively they gets their case out (click here for a relevant article). However, a colleague of mine recently directed me to the website of a company that claimed that they “can predict the verdict at each stage of the trial from the reactions of the shadow jurors.” This is a dangerous claim to make. Shadow juries are useful feedback tools and they can give an advocate a good sense of what is working and what is not. But this implies a perfect level of prediction and that just isn’t possible. We have heard numerous praises from attorneys who have heard loud and clear from a group of shadow jurors that they didn’t get the point that was trying to be
made from a witness in Direct Testimony. The attorney then got confirmation the
next day that she got the information in through another witness. This example
shows one of the many ways this tool gets used most effectively.
Posted Apr 1, 2008 07:23am by Christopher J. Dominic.
Do Cell Phones Hurt Jury Research?
A common question we get when planning on recruiting mock jurors or setting up a community attitude survey is "Are you going to get through to people with cell phones?" The question comes from the fact that we use Random Digit Dialing (RDD) to make sure that representativeness in the venue is as well maintained as best possible.
With this background in mind it's not surprising that we often get an inquisitive look when we answer this question with a "no." The random numbers generated cover everyone with a land line which means it gets to people with unlisted numbers just like jury service would (it's legal because we are hiring, not selling). So, the ultimate question is, "Will not having participants who are 'cell-onlys' decrease the representativeness of our sample for jury research." So far, the answer to that is "no" as well. Attitudes are still not significantly different between the different groups. A Pew Research Center Publication that was released earlier this year provides support for the position.
Will this be true next year? That fact is unknown, this is the sort of change that everyone in the field has to continue to track.
Posted Mar 4, 2008 01:13pm by Christopher J. Dominic.
"What Women Lawyers Really Think of Each Other"
The ABA Journal came up with a compelling headline for their article "What Women Lawyers Really Think of Each Other" this month. This survey of over 4,000 respondents revealed some interesting findings. In particular, women over 40 who were also supervisors, "who said gender mattered to them preferred working with women. About 80 percent said female lawyers take direction better, take constructive criticism better (59 percent) and have more discretion (79 percent). But younger female attorneys who are following in the footsteps of that trailblazing generation don t hold their older colleagues in such high regard. Among female lawyers under 40 who thought gender matters, 58 percent said male supervisors give better direction, give more constructive criticism (56 percent) and are better at keeping confidential information private (64 percent)."
Author Stephanie Francis Ward does an excellent job of getting experts to weigh in on the study. There appears to be some consensus that the gender gap is a small window and that the difference between female lawyers under 35 and over 45 is significant.
This survey raises interesting questions about the possibility that this gender gap may apply in some degree to women professionals as a whole. Other possible implications are to employment cases involving women supervisors. Both, in regard to strategy and to the high risk juror profile.
Posted Feb 9, 2008 07:15am by Christopher J. Dominic.
Judges vs. Juries: Research v. Public Opinion
Anecdotally, it seems like most people believe judges would give a more fair verdict than a jury. After all, it seems like many of the studies done to see how often juries "get it right" are done by comparing their decisions to judges with the underlying presumption that the judges got it right and the jury got it right if they decided the way the judge did. I've even had people say to me that juries are only around because of the Constitution and if we had to do it all over again we'd ditch the idea as a romantic nod to democracy created at an odd point in history.
Of course, those who look at research done on juries know to be true what storied researcher Neil Vidmar has stated after looking at scores of data, "Indeed, the data suggest that because jury verdicts result from the combined
judgments of six or twelve persons, juries likely yield more consistent awards
that would be obtained from judges or individual arbitrators."
So when the Harris poll came out the other day it was refreshing to see the results. A mere 23% believe that a Judge would give a more fair verdict, 27% state they are "not sure" (which is only fair), with half the population believing Juries give a more fair verdict. Furthermore, it was encouraging to see that 44% of Americans has reported to jury duty and 24% have been seated. Considering other research that says that serving as a juror increases civic duty, this is good news.
Posted Jan 23, 2008 02:44pm by Christopher J. Dominic.
Googling the Jury
The podcast "Should I Google the Jury" from the ABA website addresses an issue that comes up occasionally with lawyers and litigation consultants. Some attorneys are big believers in "researching" their jurors this way. We've found that a well crafted set of attorney conducted questions and/or a good supplemental juror questionnaire are far more powerful tools. True, an Internet search could deliver interesting information but it's far more likely to give you information on par with learning what bumper stickers are on their car. Again, it's not useless, it's just usually not that useful. If you case involves a "word of mouth agreement" you might as well find out what your jurors think about "oral contracts." Many jurors don't believe that oral contracts are enforceable and are good cause challenge in many courts. Regardless of what you can get from the world wide web, it will not change the fact that learning specific the specific attitudes of your jurors is the best juror due diligence you can do.
Posted Jan 13, 2008 11:26am by Christopher J. Dominic.
Juror Questions During Trial
Florida will be the latest state to allow questions from jurors starting in January 1, 2008. Several have asked me to comment on the idea. I've come to the position that it can be a great benefit to the case and it can also be a disaster. If handled correctly, it's a good thing.
The dissenting judge in the decision to make this allowance, Justice Peggy Quince stated, "I strongly believe that it is the responsibility of the parties, through their attorneys, to present the evidence to the jury in the form of their questions and the physical and demonstrative evidence." I couldn't be more sympathetic to this position but believe we can have it both ways.
If the attorneys do not prepare effectively, the avalanche of questions coming from the box will slow down the trial as the judge sorts through them. There is no doubt that "questions alone" do not address the problem of poor preparation. However, human communication is a difficult task, particularly in a trial setting. If just a few key questions make it to the judge, who asks them because well...they are good questions that are allowable by law as the judge sees it, it's tough to argue with the concept that a more accurate understanding of the attorney's positions is a bad thing.
After all, the Arizona Jury Project did much to show everyone what many litigation consultants have known for decades, that overall, juries can be trusted to do a good job and even when bias and other issues become a factor in decision making these problems inherent in human beings that can be minimized but not eliminated. Author Shari Diamond summed up this position in the Annual Review of Law and Social Science (vol. 1: 255-284, December 2005) by stating, "Juries make mistakes, and they display evidence of bias, but there is no convincing evidence that another decision maker would do better."
Posted Dec 29, 2007 08:20am by Christopher J. Dominic.
The Verdict on Juries and Patents
The debate has raged for years as to the appropriateness and competence of juries in Patent cases. A few years ago, I was quite proud of Senior Consultant, Bruce Boyd (one of my partners at Tsongas) for boldly and publicly stating, "The modern American jury is a miracle in terms of what it can dig through and understand. I ve personally never seen a case where I d recommend a judge because the facts were too complex." This quote was taken by Janine Robben in an article she wrote for the April, 2005 Oregon State Bar Bulletin entitled Specialized Courts vs. The Jury of Peers.
This is a strong statement. Bruce has been a practicing litigation consultant since 1987. He has seen many mock and actual juries. Furthermore, this quote was positioned against a quote in the same article from Professor of Intellectual Property Law, Joe Miller from Lewis & Clark Law School that stated, "A jury is a great way to figure out whether someone s run a light and caused an accident. It s really good at the Scott Peterson stuff. It s not good at determining whether this microchip infringed this patent."
I don't agree with Miller but I do sympathize with his position because: 1) I don't think his intention was to come off as elitist; and 2) this is actually the intuitive response that many of us have when we first consider this issue. It just makes sense that regular people wouldn't do well with specialized knowledge. I suspect many attorneys agree with Miller on this subject.
I received my pre-ordered copy of American Juries: The Verdict by Neil Vidmar and Valerie P. Hans yesterday and had a great excuse to crack it while our IT professional was on my computer. I was quite impressed by Vidmar and Hans after reading Judging the Jury several years ago. American Juries endeavors to evaluate 50 years of empirical research on the subject and draw conclusions. I had just learned that in the year 1215, in England, that all felonies required a death sentence, when I thought I'd take a break and check out what V&H concluded about patent cases.
On page 152 they cite a study that examined 17 years of patent cases that had been appealed to a higher court. If judge and jury agreement is any measure of effectiveness (another debate entirely), "...using the decision of an appeals court to uphold a verdict as a measure of correctness, she [the author] concluded that they [judge and jury] seemed equally accurate."
So how would Boyd know this? The answer is that he has seen hundreds of mock juries deliberate and he knows that when juries don't get it right it is usually for one of three reasons (although the list is longer):
1) The attorney did not spend the adequate preparation time altering the way in which they deliver their case to be more accessible to lay people;
2) The jury instructions and/or verdict form is incomprehensible and the attorneys and/or judge, again didn't put in adequate preparation time to explain what the key instructions mean to their case;
3) You rolled "snake eyes" and got the unfortunate oddball combination of people that don't complement each other (my experience is that this happens less than 20% of the time).
To be perfectly clear, it's not that sometimes a bench trial isn't warranted for a party in a particular case. Bruce's quote simply points to the fact case complexity alone isn't a good enough reason to make this recommendation. Case complexity can be addressed with more diligence and preparation in working on how to deliver the case.
Posted Dec 15, 2007 08:26am by Christopher J. Dominic.
Considerations for Preparation of the Opening Statement
After a recently lively and entertaining conversation with colleagues I was reminded that when you say the words "opening statement preparation" to an attorney, their understanding on what that means is as varied as the individual.
Some write manuscripts, others write outlines. Some practice in front of people. Still, others practice in front of a mirror, not at all. It goes without saying that the speech is an important one and that preparing for it is as well.
I once had a good client comment to me (after he received from me a particularly long critique of his presentation) that he had just come to the realization that he needed to stopped patting himself on the back for merely "practicing." As a former college speech teacher I found that to be eye opening. He was being limited by his own low expectations and holding himself back. With these two experiences in mind, I thought it might be a good idea to share a few questions that my colleagues and I would typically have. I have also linked these to articles that address each issue:
There's a much longer list than this obviously, but it's a start and can be a good reminder on just how much preparation not a great but merely good opening needs.
Posted Nov 29, 2007 11:36am by Christopher J. Dominic.
Beware of Pretenders
Trial/Jury/Litigation Consulting is arguably the most recent of all the professions. Few can remember what it was like when the American Psychological Association began in 1892 by 26 men (and they were men). In comparison, the American Society of Trial Consultants was formed in 1982 by a handful of men and women who wanted to formalize the field they had been practicing for several years. In the grand scheme of things, we're just coming into our adulthood and there are still large segments of the population who don't know how to distinguish the players from the pretenders. It is unfortunate but to be expected that many attorney clients of trial consultants have worked with someone just hanging out a shingle, had a bad experience, and developed the impression that the field is filled with hacks. ASTC member Anne Reed covered this issue quite well a few days ago in her blog, Deliberations.
Are there hacks? Sure there are? They exist in every profession and particularly one that is as young as ours. In reality, the best and brightest aren't that hard to find. They can be found on the trial teams of many of the top 25 cases in the country, they have come to become indispensable because of their experience and insight, and they are members of the ASTC.
There are a few key places to go to be a more informed and educated consumer of trial consulting services. One place to go is the ASTC code. Here you can see what standards and guidelines the field has agreed to. Second, if you want to focus on strictly jury research, the best article I have seen on the subject is by Tsongas' very own. The article is entitled Ten Key Questions: Evaluating the Quality of Mock Trial Research. Finally, an article that just focuses on how to get the most out of the lawyer/consultant relationship is an oldie but a goodie you can find here.
Posted Nov 15, 2007 09:58am by Christopher J. Dominic.
"It's Only Mediation."
"It's only mediation" is a phrase many litigation/trial/jury consultants
have heard from their clients. It can be translated on a scale from "I'm not
going to take this seriously because one of the elements of the process is
broken" to "We're just too far apart and it'll never happen." There's no doubt
that there are cases that should be settled and cases that should be tried and
sometimes cases that should be tried, end up being settled due to a host of
factors such as a low chance of success or a risk averse client (the list is
somewhat endless). The subject I'd like to briefly cover is specific to a
case that "should" be settled.
In this sort of a case the preparation for mediation should rival or equal
trial preparation. This does not happen as often as it should. One of reasons
for this is the belief that the mediator, who typically has some form of legal
training and/or experience and therefore doesn't need the same level or type of
persuasion. This is dangerously flawed thinking. The mediator will be able to
cut through the legal issues more quickly but requires an even shorter period of
time to "get" your message than a jury or judge. By not taking the time to go
through a structured process to boil down essential themes and deliver them with
the support of key demonstrative exhibits the opportunity to get a competitive
edge can be lost. Mediators are humans too and must reason accordingly.
Furthemore, a mediator has to answer the question, "what would a jury do with
this?" More and more, attorneys who have a well developed mediation strategy
will get the edge over their adversaries who have an unstructured preparation
process.
Posted Oct 27, 2007 09:22am by Christopher J. Dominic.
One in Not Acting as a Zealous Advocate for One's Client When Acting as a Zealous Advocate in Voir Dire
It occurred to me while I was writing a recommendation about the importance of a single defense jury selection strategy among multiple co-defendants that although counterintuitive, one does not act as a zealous advocate for one's client when acting as a zealous advocate in voir dire. Many have come to this conclusion not by the research but by some event that scarred them permanently.
Imagine (true story) defending a case in which the only reason you're in court is because the plaintiff is taking a long shot case into court. The case attributes fault to a 3rd party that had nothing to do with the injury to plaintiff directly but it can be argued that they are the root cause of the injury. Our attorney client is good, really good. Unfortunately, he could not foresee that the mere statement of the case, worded as neutrally as one could possibly imagine actually sent pro-defense jurors throwing their hands up and telling the judge that they think it's a stupid case and they can't sit on it (and yes, some of them were just trying to get off, most of them probably were not, it was a silly case). Other good defense jurors follow his lead and an hour later, 13 great jurors for the defense go walking out the door.
Regardless of how even the match up is between adversaries at trial an attorney can expose jurors who are supportive by selling their case too hard before client. Although in this scenario the client did not "sell their case in voir dire," the aforementioned scenario could be recreated.
Posted Oct 11, 2007 03:21pm by Christopher J. Dominic.
Contempt of Court
There have been numerous accounts of jurors being held in contempt of court in the last year. Every occurrence I have seen has been shameless (which is why it gets press). When I was recently met with the comment "that's over the top" directed toward the judge, from an acquaintance in regard to a news story about a juror being thrown in the pokey for obviously purgering himself to get out of jury duty I said, "he did the crime, he has to do the time." Of course, my acquaintance didn't understand at first but my hard-nosed stance was entertaining for him. My position, of course, is based on the premise that jury duty is an inherent duty of American citizenship and the assumption that not making an example of an occasional purgerer or (seen recently) "runner" will be met with the chaos of jurors increasingly "blowing off" jury duty. Earlier posts of mine discuss how juror expectations aren't set correctly by our society but I won't repeat myself.
A colleague and I did get to see a judge recently scare the pants of a juror who went and told his boss all about the high publicity case we were working on that she explicitly told him not to tell anyone about. Even more amazing, he argued that his breach of the court's orders was what now made him unsuitable to serve. When the judge specifically mentioned that he could do time in jail for violating her clear orders, he nearly cried. Realizing she was about to crack the man, she let him go. It probably did the trick without having to put him in jail.
Posted Oct 2, 2007 07:35pm by Christopher J. Dominic.
The Corporate Jury Duty Policy
While recently assisting in a jury selection there were a few jurors who drew gasps from the courtroom when announcing that their company had a "no pay" for jury duty policy. I know, I know, "this person is either ignorant of their company's policy or not being entirely honest" is what you're thinking. Well, not in this case. I also found a few examples of people discussing this issue online. The tip here is a simple one, don't assume that there is no impact to your corporate image if you have a "no jury duty" policy. There were several prospective jurors and a judge who were incensed. They will tell two friends, who will tell two friends, and so on.
Posted Sep 20, 2007 08:44am by Christopher J. Dominic.
Study Shows Impact of Deliberations
"We just need
to get most jurors to buy our story and they'll influence the others right?"
This sort of question came up recently. The answer of course is,
"maybe." Juror deliberations are fascinating for many reasons, one being that
the process can have an impact on the verdict and jurors aren't given much
direction on process. After all, they are in charge once the Judge gives the
case to them.
Anytime a study comes out that has actual jurors as its
subjects as opposed to college students, the legal community should pay
attention. The reason why--it doesn't happen very often because of the strict
rules on jury tampering (a good thing). So when a team of team of
researchers from Indiana University published the study in July's Journal of Empirical Legal Studies I thought
I'd here more people talking about it. I haven't.
My current theory on
why there isnt' much buzz is that it confirms what jury consultants talk about
every day. Regardless, I'd recommend giving it a look when you have an extra
moment. I can't link to the journal itself but there is one good summary about
the study in the Indianapolis Star you
can see by clicking here.
Posted Sep 8, 2007 08:22am by Christopher J. Dominic.
Criticizing Jurors For Fast Deliberations Is Fair...But Wrong
Andrew Cohen, CBS's Legal Affairs Correspondent recently stated, "What jurors did in the just-completed terror conspiracy and support trial of Jose Padilla and two other defendants is a travesty upon justice and an unconscionable affront to the judge, the witnesses, the lawyers and especially the defendants themselves, who, whatever we think of them, surely deserved a more reasoned approached to deliberations than what they received." This can be found in the post, Taking "Deliberate" Out Of Deliberations on the Couric & Co website on August 21.
This argument presumes that because deliberations only took a day-and-a-half after a three month trial, the jurors "mailed it in" with their deliberations and therefore did not do their duty. This is a logical, common-sense argument. Furthermore there is some chance that Cohen could be correct. However, it's extremely unlikely. As a jury consultant how many times they have seen a jury not take their job seriously after the have been seated and they will most likely say--never.
To be fair, Cohen probably doesn't know much about how people process information or how small-group communication works. People distrust this process because it is difficult to understand and until you see it work over and over again it is easy to be skeptical. For example, as a direct application to this case, the court insists that jurors withhold judgment until deliberations. This does not mean that people do not assess the credibility of witness testimony and other forms of evidence as they are being presented. It is not unusual for jurors to go into deliberations with a list of impressions and questions for other jurors. There is nothing wrong with this and it makes possible the scenario that unfolded with the Padilla jury.
Telling a jury that they should be ashamed of themselves when they likely took all the time they think they needed is "an unconscionable affront" to those dutiful citizens.
Posted Aug 25, 2007 11:31am by Christopher J. Dominic.
Trial Consultants Influence Cases in Emerging Areas
After last year's American Society of Trial Consultants (ASTC) conference I contributed to an article entitled Industry Update: Trial consultants practicing more prior to ADR. The article highlights the clear trend that trial/jury consultants are increasingly working on cases that are expected to settle through through some form of alternative dispute resolution (the growing term "litigation consultants" reflects this shift).
This trend is continuing in venues that many assume is doing "business as usual." Just a few days ago in the August 16 edition of Oklahoma City's, The Journal Record published an article entitled Trial consulting proves lucrative in state. Within this article several facts are presented that may be unknown to some attorneys but are everyday reality for the modern litigation consultant. Among these are: 1) "The term 'trial consultant' is almost a misnomer (sort of like "jury selection"); 2) We're brought in earlier than ever but often it is later than it should be, and 3) with 1% of the cases going to trial we are often providing specific strategic advice that focus on maximizing our position in the settlement.
I expect to continually see articles like this coming out of other states not traditionally associated as large litigation markets in the coming months and years.
Posted Aug 19, 2007 09:36am by Christopher J. Dominic.
Managing Corporate Counsel Expectations
As an associate member of the ABA I get several emails a week promoting various seminars or publications. While searching around the website I found an article called How To Keep Your In-House Client Happy by Mari I. Valenzuela who is corporate counsel for Microchip Technology, Inc. It's a solid article and would be a good reminder for many attorneys to read.
Now, it may be that this article didn't presume litigation in process. However, I did notice while the article discussed managing expectations in regard to the budget for legal research it does not address the importance of the budget for litigation support.
One of the largest mistakes a modern litigation attorney can make is to only clarify traditional budget items. The outside attorney should not be put in a position where they feel like they may have to shave their own budget to involve a litigation consultant, conduct focus groups, or develop demonstrative exhibits.
The client should not be put in the position of having their expectations violated to do their basic jury due diligence. Legal research without jury research rarely makes sense in litigation that makes it to formal ADR or trial. Even in smaller exposure cases, being able to work with litigation consultants in lieu of jury research can be essential to ensuring that the client feels like their case was given the attention and consideration it is due.
Posted Aug 12, 2007 01:30pm by Christopher J. Dominic.
Why Would You Want To Get Out of Jury Duty Anyway?
When I talk to people not involved in any aspect of our 3rd tier of the United States Government I often hear questions like, "how do I get out of jury duty?" If you, the reader are also working somewhere within our judicial branch I suspect that you get this question from time to time and that many of you don't actually want to tell your friends how to get out of jury duty because it typically involves deceiving the court and purgery on the good to bad scale is well...bad.
In the spirit of full disclosure I should say that this gives me an excuse to educate so I usually say something to the effect of, "You don't want to get out of jury duty, you want to do your duty, you just don't know it yet." This is a bit over the top, but it works. Your goal is to get them to want to know more at this point. Here are some follow up approaches I suggest to get people back on the direct democracy train:
For the pragmatist--"Whatever you do, don't actually lie. There are more judges holding jurors in contempt for shamelessly purgering themselves under oath during jury selection."
For the patriot, regardless of political affiliation--"One of the biggest motivators for many American troops to take up arms in the Revolutionary war was to obtain trial by jury. Thomas Jefferson protested the fact that King George III 'made Judges dependent on his will alone.' Many judges were corrupt, they wouldn't bite the hand that feeds them. Many people died for this right that you now enjoy."
For those that already have a liberal leaning--"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." --Thomas Jefferson to Thomas Paine, 1789. ME 7:408, Papers 15:269 "[The people] are not qualified to judge questions of law, but they are very capable of judging question of fact. In the form of juries, therefore, they determine all controverted matters of fact, leaving thus as little as possible, merely the law of the case, to the decision of the judges." --Thomas Jefferson to Abbe Arnoux, 1789. ME 7:422, Papers 15:283
For the person who feels powerless and wants more controlOR complains about jury verdicts--"Come on you have several complaints about law, society, etc. Now's your chance to do something about it. In our system, the state actually turns over it's power to YOU. You go deliberate with the others, make a determination, and whatever you say should be done WILL BE DONE and IMMEDIATELY unlike voting for elected officials (you can add 'which is representative democracy' if you need to).
The response that I typically get at this point is something to the effect of, "but it's so much time and expense." I try not to be judgmental about this because I believe the typical American citizen's expectations have not been effectively set by our education system here.
My response is something to the effect of, "That's right, it's a hardship, it's a duty, it's a sacrifice. It's supposed to be hard. The burden is on the people to govern their society in a direct democracy (hence the term 'peers'). BUT we have the most uncorrupt system in the world because of this system and we need as many people to participate to uphold the fifth and seven amendments of the constitution" (most American give deference to the Constitution, it's typically a winner).
You can save up the kicker or just deliver it depending on your audience and what level of a roll you are on. The kicker is, "It's actually the only duty that you are REQUIRED to do as an American outside of register for the draft if you're a male over 18." They look at you incredulously and you respond, "You only pay taxes if you have income."
So far, I think my success rate is around .750 on attitude change and .500 on getting people to report for jury service. Then again, I could be wrong.
Posted Aug 4, 2007 09:04am by Christopher J. Dominic.
The Intertwining of the Media and the Justice System
I was in New York on Wednesday to appear on Court TV's Bloom and Politan show. They were covering the Phil Spector murder trial and wanted me to weigh in on some aspects of it. The format included showing some of the testimony of the case for blocks of time and then providing commentary.
During testimony in the case it became apparent that a witness was compelled to court under power of subpoena after appearing on Court TV on the very show I was appearing on. This witness knew the woman who Spector is accused of killing and had a discussion with shortly before the alleged murder took place and that she was despondent. Well, the defense's theory is that she committed suicide so he became important.
Certainly they could have learned of the witness independently through an investigator. However, this investigator also may have learned of the witness through the appearance on Court TV. It may even be that a friend of someone on the defense team was simply watching Court TV to follow the trial. When the witness testified that he was friends with Lisa Bloom and she simply asked him to be on the show, the show actually became a part of the case. Even more fascinating, Court TV actually for a brief time covered itself (I should note that the anchors handled this extremely well).
The experience was fun and I was left with the thought that the world we live in is one where anyone with a cellular phone
connection can download or upload information available to anyone who can access the world wide web. The now ubiquitous nature of the media makes it an unprecedented force. A force that attorneys should understand.
Posted Jul 27, 2007 07:37am by Christopher J. Dominic.
Online Polling in High Profile Trials
Online polls are entertaining. It's fun to see what people think. However, they can also be extremely misleading when, for example, you ask members of the general public to weigh in on what a jury will do with a high profile trial. While doing some internet research I came across a poll that said "PHIL SPECTOR WILL BE FOUND GUILTY IN MURDER TRIAL." Once you look at this tool, you quickly realize it's more for entertainment purposes than anything (at least I found it entertaining). But it did occur to me that somebody might take this a little too literally.
Obviously the ability to access a trial in its entirety, on television or the internet, actually opens the possibility that one can be a thirteenth juror, and that's exciting. However, it's safe to assume that many of the respondents to online polls are casual viewers and get plenty of media coverage and analysis to go along with their witnessing of the trial.
Actual jurors are prevented from seeing evidence and hearing testimony that is deemed irrelevant or otherwise excluded from the case. Jurors are also instructed not to do any independent investigation of the case (I've heard a judge specifically take a moment to instruct "absolutely no Googling"). As long as they are taken as entertainment more than as predictive tools, online polls will continue to be what they should be--fun.
Posted Jul 21, 2007 07:16am by Christopher J. Dominic.
Group Retreats
Tsongas is having an all staff retreat for a few days next week. I started looking around for information on what to do and what not to do. I found it interesting how many articles referred to just getting away together as inherently good.
While I want to believe the aforementioned concept, something doesn't ring true about it. An organizational retreat can be a lot of fun and seem like it's doing some good but really just be the equivalent of a "cortisone shot." It wears off in a day or so and you're back to the same ol' same ol'.
If you end up back in the office and someone asks you "what are you going to do differently as a result of the retreat?" and your answer is "well, nothing really, we had a good time together" I would argue that you just wasted a significant amount of money and time. An article from Business Week entitled The Antidote to Corporate Retreats does a good job going over some key points of what is key to success at a retreat. I hope to take some of the advice.
Posted Jul 14, 2007 04:02pm by Christopher J. Dominic.
"The Curse of Knowledge"
"The Curse of Knowledge" is the way Chip and Dan Heath explain our inability to understand why others don't quickly understand what we intend to communicate to them in their book Made to Stick. While this concept is as ancient as classical Rhetoric, the brothers Heath do an excellent job of referencing a key experiment that demonstrates just how off our expectations are about how easy it is to communicate.
"Tappers and Listeners" from the introduction is where this experiment is detailed. To cut to the chase: people whose job is to tap out a song to someone is asked what chance they have to communicate the song to them just by tapping (they both have access to a limited list of songs). The tappers thought that 50% of the time they would be able to successfully communicate the song when in reality they were able to 2.5% of the time.
This should be a motivator for attorneys. I was reminded of multiple events sitting side by side with attorneys in the closed-circuit room watching mock jury deliberations when an attorney would watch his or her argument get repeated back, not as originally intended, and say something to the effect of "what an idiot."
No doubt it's frustrating. We've all been there. And I suspect that much of the time the comment is really just blowing off steam. But in some cases it's clear to me that some actually blame the jurors (e.g., they're stupid). This is dangerous for two reasons: 1) it's wrong, the aforementioned experiment aside--regardless of the intelligence of individual jurors it's difficult to assemble a stupid jury; and 2) because it's only productive to focus on what you can change, not what you can't (you'll lose more often with this attitude).
One really easy test to see if you're slipping into this mode is to notice how you respond to people who misunderstand you in everyday communication. Do you address your listener by saying "you misunderstood me?" If so, try and replace it with something like, "let me be clearer" and you'll put the onus back where it should be-- back on you.
Posted Jul 7, 2007 09:21am by Christopher J. Dominic.
Egocentric Bias
The strongest attributes of any individual ofter produce their greatest strengths as well as their greatest weaknesses. Litigators are often lauded for their unshakable confidence. No doubt this is a key characteristic for anyone who is an advocate for others in an adversarial system. However, the liability that sometimes develops along with this asset is an attribution error most commonly referred to as Egocentric Bias.
Litigators see this judgment compromiser rear its ugly head when they have a client who has been very successful so they presume they are good at the attorney's job as well (i.e., I'm a smart person so I should trust my own judgment more than the trained specialist). Attorneys should consider this frustrating situation when they believe during jury selection that they can change the closely-held attitudes that jurors have formulated from their life experiences. There is simply too much research that demonstrates that most people, absent traumatic events in there life, just don't change very easily past a certain point in their life.
The odds just don't favor a strategy intended to get a tort-reformer to be a non-tort reformer or someone who makes decisions with their heart over their head to suddenly be a pragmatist. A strategy with favorable odds is one that focuses on learning who your jurors really are and presuming they will be themselves. Anything short of this strategy risks putting yourself in Icarus's shoes.
Posted Jul 1, 2007 03:53pm by Christopher J. Dominic.
Graphics and "Slickness"
I haven't heard the question, "will graphics make me look too slick?" in at least a year but I heard it about a week ago. My answer (as well as my colleagues) was a simple, "no." We first published this response in 2004 and it was relatively old news then. It probably isn't that simple but after watching mock jury after mock jury deliberate after they witnessed relatively "slick" presentations, I've never heard anyone complain about good graphics. On the contrary, I have heard plenty of complaining about unprepared attorneys. Many judges hear this complaint as well.
Getting a handle on this issue is quite simple actually. It is simply a question of matching the expectations of jurors so they aren't spending time in frustration. Juror frustration from a communication perspective is really just "noise." It makes it harder for people to receive your message as you intend it. Why would it be frustrating? Because they expect a prepared, persuasive, and compelling presentation. Do you take the weather anchor's word for it when they say "it may look great now but it'll be stormy tomorrow" or do you want to see the "3D Doppler Radar" that proves it. When choosing between the fear of looking too slick and taking longer to deliver your message in a less clear fashion, it's hardly a choice at all.
Posted Jun 25, 2007 07:47am by Christopher J. Dominic.
Who is NOT Putting Poison in the Jury Pool
In the June 11 issue of the National Law Journal authors Bob Abrams and Terry Sullivan wrote about the dangers of push polls in an article entitled "Who Put Poison in the Jury Pool." The current President of the American Society of Trial Consultants was quick to send a letter to the editor to ensure that it is clear that members of the ASTC have standards in place that make clear that venue surveys and push polls are entirely different. More specifically, he makes clear that push polls and trial consulting are incompatible. Since it's unknown at this point whether or not the NLJ will print this letter to it's editor. I thought it made sense to post it here:
Letter to the Editor by Kenneth Broda-Bahm, Ph.D., President, American Society of Trial Consultants. June 15, 2007.
Popular images notwithstanding, it is safe to say that the fictional exploits of Rankin Finch, the sleazy trial consultant villain of John Grisham's The Runaway Jury do not represent the practice of ethical attorneys, nor the work of ethical trial consultants. The article "Who Put Poison in the Jury Pool" (Bob Abrams and Terry Sullivan, June 11th), points to an increasing fear that attorneys' undue influence over jurors before, during, and after trial may be facilitated by trial consultants through polling, investigations, and post-trial interviews. It is wise to take a careful look at anything that could influence the effectiveness and autonomy of the American jury, but at the same time it is critical to point out that far from being stop-at-nothing jury-riggers, trial consultants who are members of the American Society of Trial Consultants follow professional standards that are designed to facilitate and not undermine the American legal process.
The possible abuse of that process by unscrupulous parties, for example through 'push polling," is not a reason to oppose or distrust surveys designed to measure public opinion that have been conducted and submitted to state and federal courts across the country for over 30 years. The American Society of Trial Consultants, which currently has 535 members across the country, has clearly set out legitimate purposes in conducting surveys in a trial venue prior to trial. By assessing juror bias, a public opinion survey permits the parties and the judge to evaluate whether pretrial publicity or other unique factors create reasonable likelihood that a fair and impartial jury cannot be selected, and such surveys are important in safe guarding the interests of justice. Attorneys who are able to document the problem of prejudgment through survey research are able to seek remedies such as a change of venue, sequestered voir dire or additional peremptory challenges. ASTC's standards counsel against providing new "information" to respondents through the survey, which is a central feature of push polling. An ASTC member following those standards would not conduct a "push poll" under the guise of measuring pretrial bias. To the contrary, our standards focus on ways to avoid influencing responses in order to enhance the validity of the research. As trial consultants, we take seriously our obligation to improve rather than impair the jury system by using social science tools to reduce rather than create bias and prejudice in the courtroom. In short, Rankin Finch is not a member of the American Society of Trial Consultants.
Posted Jun 17, 2007 11:26am by Christopher J. Dominic.
Attorney Led Research
This last weekend, at the American Society of Trial Consultants there were multiple conversations in panels, and halls about the dangers of practicing attorneys conducting their own research. From the conversations I took away that there are three primary problems: 1) practicing attorneys rarely have the educational background to fully understand how to design and conduct jury research; 2) they don't have experience conducting quantitative or qualitative research; and 3) a little something called Confirmation Bias. To put it simply, it's the tendency for people to look specifically for something in the research to confirm their own suspicion as opposed to looking at all of the data and discovering the findings in their plainest, truest, sense.
Of course, this is dangerous. For attorneys and their clients. One consultant commented that it was the equivalent of one doing surgery on themselves (they were specific of the type of surgery but it just isn't proper for this forum).
Why would this even occur? A few reasons that some have speculated about are: overconfidence; a desire to keep "costs down;" and, the desire to have fees that are going out to consultants, going into the firm.
The reality is, there is a point where no research is better than some. The risk of developing a case based on dinner-party feedback from one's own social group can be extremely dangerous. There are other ways to develop a case that has a small litigation support budget that are more effective than trying to turn a "sow's ear into a silk purse." Many have found the article we published in December of 2005 Indicators of Quality in Pretrial Small Group Research to be helpful in educating others on what really matters in jury research.
Posted Jun 12, 2007 08:26am by Christopher J. Dominic.
Litigation Consulting Standards
Many have asked me lately about the standards and guidelines for jury/trial/litigation consultants. Since this week is the 26th annual ASTCconference in Long Beach, CA where consultants will come together from all corners of the country, I thought it just made sense to jot down a few notes.
The standards and guidelines for the ASTC are publicly accessible on the ASTC website under the area referred to as the ASTC Professional Code.
It took nearly a decade to create, refine and democratically pass these standards and guidelines for: change of venue surveys, witness preparation, small group research, and post trial juror interviews. They are really quite an accomplishment. In fact, they are still being refined. In a growing field this code is critical for new practitioners entering the field. Not all practicing consultants are members of the ASTC but the ranks are growing.
The field is in its late adolescence and is clearly experiencing the natural growing pains that all professions experience about this time in their development. This week will be an interesting view into which direction this field will take.
Posted Jun 4, 2007 04:13am by Christopher J. Dominic.
For
such a short piece I was extremely impressed at how eloquently but clearly Kashi
makes the case that graphics are not just a way for attorneys to garner a
potential competitive advantage. What I took away from the article was--there is
empirical proof that one cannot communicate as well without them, therefore, you
do a disservice to your client to not incorporate visuals to supplement your
delivery to mediators, arbitrators, judges, and juries.
This is an
article that must be paid attention to. It may make some attorneys uncomfortable
but this should be of no surprise. How many graphics classes did you take? It's
not exactly common in Law School. Pushing ourselves out of our comfort zones is
hard but it's essential to staying competitive.
Posted May 22, 2007 05:06pm by Christopher J. Dominic.
.jpg)
RSS