READING THE TEA LEAVES — JURORS’ “SIGNS” DURING DELIBERATIONS

The jury asked to have the entire testimony of Mr. Smith read back; the jury asked for Thai food for lunch; the jury asked to see a particular medical bill; Juror #4 looks angry; Juror #8 looks sad; it’s been 6 hours; it’s been 3 days — What could it possibly mean?

Unfortunately, it’s like reading tea leaves. Everyone has their own opinion, and the “common wisdom” has been disproven so many times, it’s surprising people still talk about a “common” wisdom.

In criminal trials, the common wisdom indicates that longer deliberations favor the prosecution since it doesn’t take much time to check “not guilty.” Does the same hold true for civil trials? Does a longer deliberation means the jury has moved from liability to causation, and is grappling over damages? Not necessarily.

We encourage attorneys to include in their closing instructions for how to deliberate. It might mean telling jurors to first talk about “what they think happened,” before going to the verdict form, or it could mean telling jurors to be procedurally-oriented and first go to the verdict form, find the corresponding jury instruction, then discuss all of evidence that applies to that particular question. This orientation can, clearly, take quite a while. It is our experience that the more the jury focuses on the law and the specifics, the more that favors the defense. Are there exceptions? Sure. Which is why we’re back to tea-leaf reading.

There might be better “leaves” to read if the jury asks to see certain exhibits or testimony, but this could, also, lead to a false positive. Perhaps they are asking for the sake of being thorough, or someone is playing devil’s advocate. A jury’s question can be a fairly good “leaf” if it relates to a verdict question, “Do we have to accept every element in the life care plan?” This still leaves open the question of the actual award. Sure, they might have found liability, but if you thought of it as a damages case anyway, then it sounds like you’re doing well. If you were fighting liability, get out your checkbook.

In the end, instead of reading the tea leaves, it’s better for your stress level, and far more entertaining, to make a couple of side wagers: How many questions will be asked and how many hours they will deliberate? That should whittle away the time. And it won’t raise or crush your hopes.