Sunday, July 31, 2005

A Safer World. . . for Whom?

Rattlerd asked:

Are there any other innovative ideas out there that could address the problems professional juries are put forward to solve? As a CPA and auditor, I was especially distressed at the outcome of the Scrushy/HealthSouth case upon reading some of the jurors' comments that they really didn't understand the prosecution's case because it was too complicated and simply boring. There was evidence in the OJ Simpson trial that at least one juror confused DNA evidence with blood type, and given the increasing complexity of technology I don't see most patent cases can be competently heard if you're not an engineer.

Is this just a problem of perception, and if not, are there no good alternatives?



Whenever there is a failure in communication, at least two parties are involved. There is the person attempting to communicate, and the person attempting to understand that which the other party is attempting to communicate.

Perhaps we are blaming the wrong party.

My law school did not offer any courses in communication skills. Nor do most others. There are courses in trial advocacy, certainly. But courses in communication skills? No.

Quoting from the communication failure link, a simple communication effort "can be presented diagrammatically as follows:

idea in A's mind --> a formulated message (e.g. sentence) --> transfer mechanism (e.g. speech and hearing) --> idea in B's mind.

Each transformation (depicted as "-->") brings its own contribution to the probability of a failure."

Thus, some of the reasons for the communications failures are:

1. A doesn't have a clear idea in his mind.
2. A cannot formulate the idea into a coherent message
3. A cannot speak clearly
4. B cannot hear well
5. B cannot understand A's message to create a coherent idea in his mind.

In the case of an attorney presenting evidence through an expert witness, the additional problem is that BOTH the expert and the attorney have to have the same idea in their mind, and be able to formulate it into a coherent message through Q+A.

So, when juries misunderstand what a lawyer is trying to tell them through an expert, who is at fault? Is the problem with the jury being unable to understand, or is the problem with the attorney and/or experts being unable to communicate a coherent message?

I do not think it is a stretch to claim it is more often the latter. We should not reform/deform the jury system to make the world a safer place for incompetent lawyers and their incompetent experts. Instead, we should better understand how to present a clear, coherent message through our witnesses. We do not need better jurors: we need better lawyers, better experts, and - perhaps - better judges.

The best experts are easily capable of explaining their subject to a group of lay persons. The average experts, however, are not. Their understanding tends to be more abstract, and they are less capable of explaining their subject matter in concrete terms that lay people can understand. A good lawyer can assist in this matter, through witness preparation and careful questioning. How many lawyers omit these steps -- then blame the jury afterwards?

The average lawyers never even gain a good understanding of the subject matter they are trying to present through an expert. Some even consider their lack of understanding an asset: they will make the expert explain it until they understand it. But is it explained so well that everyone in the room shares the attorney's comprehension (considering that the attorney had at least some head start on the jury?) Probably not. Again, do we blame the jury for bad lawyering?

Good experts, with relevant visual aids and a coherent, well-planned presentation, can be understood by juries. But so long as mediocre lawyers choose to baffle by BS because they are too lazy to dazzle with brilliance, the results will be predictable.

It goes without saying that few trial judges are CPAs, or have any business or accounting experience or training. There is no reason to believe a trial court judge is any better at understanding complex, technical or scientific evidence than a jury. So trial by judge is no improvement. But do we want specially trained jurors, creating a trial transcript that appellate judges will not be able to comprehend (perhaps finding insufficient evidence as a result?) I don't think so.

There is a problem in allowing people with specialized training to make decisions binding upon society as a whole. As Lord Chesterton noted long ago:

"Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. [When it] wishes for light upon that awful matter, it asks men who know no more law than I know, but who can feel the things that I felt in the jury box. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing around. The same thing was done, if I remember right, by the Founder of Christianity."

G.K. Chesterton, Tremendous Trifles, 67-68 (1910)

Instead of changing the qualifications for jury duty, we should change the qualifications for getting a law license and/or graduating from law school to better reflect the demands upon real-world lawyers. An IRAC spouting parrot who is incapable of communicating may make a fine engineer. Don't expect him to be a persuasive trial lawyer.

Thursday, July 28, 2005

Professional Juries? I don't think so...

One reform to the jury system that raises its head all too often is the concept of professional jurors. I don't think anyone is surprised that Jurygeek (and for that matter, the vast majority of other jury proponents) are four square against such proposals. And, while the reasons may seem obvious, they deserve repeating here.

First, while the term "jury" may not be defined in either Article III, Sec. 2 or the Sixth Amendment (or in the various State constitutional jury guarantees), the Constitution is not, nor should it be, interpreted in a vacuum. The Founding Generation didn't recognize a panel of government employees as a jury, whether those government employees were legally trained or not. The historical reason behind trial by jury was to have the ultimate legal decision maker not be a government employee, but a panel of lay citizens. Obviously, professional jurors would not be recognized as jurors by the Founders.

The English common-law method for demanding a jury trial was to call for a trial "by God and Country," meaning the people of the Country, instead of their government. A professional jury would necessarily mean a trial "Solely by Bureaucrats." The Declaration of Independence listed as one of the grievances the deprivation of the benefit of Trial by Jury. One can hardly imagine the Colonists going to war against the most powerful nation on earth for depriving them of the benefit of trial by bureaucrats.

Moreover, real jurors are not beholden to either side. Could a "professional juror" ever not be beholden to his employer, the government? Could anyone really believe that a "professional juror" who voted against the government too often would not quickly be out of a job? I think not.

Anyone who knows the reality of our courts knows that few judges are truly impartial, and most judges have no qualms about using their influence and discretion to have a case come out in accordance with their preferences. Can we really believe that this would not extend to the hiring and firing of "professional jurors?" I think not.

Moreover, local lawyers and judges would quickly get to know each professional juror in the community well. Think lawyers get home-towned now? The out-of-town lawyer would never have a chance against tight-knit locals. Jury selection would be a fiasco: the locals could pick who they wanted by name without a single question, and the out-of-towner wouldn't believe any answers he received from slick professionals. Fair? Methinks not.

The myth is that "professional jurors" would be "better trained and educated", and that "experience" will somehow make them better at their job. Neither claim holds water. For obvious reasons, "professional jurors" will not have the diversity of viewpoint, education and experience that lay jurors demonstrate, nor will "professional jurors" improve with experience.

First, lay jurors have a variety of experience and education. I've seen professors, lawyers, doctors, engineers, schoolteachers, business owners, accountants, and other professionals serve on juries. The fact that the average jury consists of strangers with different backgrounds, education, and experience enriches jury deliberations and makes it possible for the jury to examine facts with a fresh eye. These people are meeting for the first time, comparing their perspectives and opinions, and trying to reach a consensus opinion on something that is new and strange to them. In the real world, this brings out the best, the most conscientious in people.

"Professional jurors" would necessarily get to know each other, and to have somewhat similar backgrounds - they all would have been hired by the same office, and they've self-selected by applying for the position in the first place. This homogeneity would impoverish deliberations, and would create a system in which complex evidence would almost never be understood - few "professional jurors" would be engineers, doctors, or CPAs. They would be bureaucrats - with all the training that low level government employees usually have.

Moreover, professional jurors would not improve, but would get worse, with experience. We all know that routine jobs rarely get the attention of once in a lifetime opportunities. Professional jurors would take a "oh, another case like the last one..." approach, and fail to give each case the unique attention it deserves. Furthermore, they would become jaded: sending that first man to prison is difficult; sending the 33rd or 330th is easy. Some jobs should never become easy.

One of the beauties of the jury is that it is not beholden to the court or to the government. Juries can nullify if they believe that the law is unjust, or that it is being unfairly applied. This provides an essential feedback mechanism; laws that are frequently nullified are laws that should change. Professional jurors would become immune to the unfairness and injustice, and we would lose this invaluable safety-valve. That alone is reason to abandon this pipe-dream of the professional jury.

And, finally, let's not forget the admonishment of de Toqueville, that jury service gives to the citizen a habit of thinking with a judicious perspective, and a training in how the laws are administered, which he can get almost nowhere else. This is perhaps why those who have served on juries have a better impression of the institution than those who have not. To lose that would be to further divorce the government from the citizenry.

While those who like to think loosely, without having to confront the unintended consequences, legal, constitutional, and political, of their proposals, the professional jury will always retain a certain lure. Fortunately for the rest of us, the professional jury remains, and likely will remain, nothing but idle chatter. The professional jury would be nothing more than a group of bad, second-rate judges: something we've got far too many of as it is.

Tuesday, July 26, 2005

Wanted: Fellow Jurygeek

I must apologize to my readers (assuming there are some) for the infrequency of blog entries as of late. I have been rather sidetracked as the law firm I've worked for since 1997 is dissolving, and I am forming a new firm with trial lawyer Paul C. Looney. Same address, same phone number, but Lamson & Looney is giving way to Looney & Conrad.

While I wend my way through the vicious trials and tribulations of launching a semi-new law practice, my blog entries may be sparse. If there is another jurygeek interested in contributing to this blog, please contact me.

Monday, July 25, 2005

Are Jury Consultants Worth the Money?

Jury consultants came into vogue during the 1970's. They have been controversial ever since. Some of the big-name jury consultants, like Jo-Ellan Dimitrius, Robert Hirschhorn, and Andrew Sheldon can bring in tens (if not hundreds) of thousands of dollars a case. Are they worth it?

There is even an organization for jury consultants: The American Society of Trial Consultants [ASTC]. ASTC puts out an excellent publication called The Jury Expert, which is available at a subscription rate to non-members.

Most jury consultants are social scientists, many with Ph.D.s, but there is no single field of study that prepares one for a career as a jury consultant. Psychology (experimental, social, and otherwise), sociology, theatre, linguistics, political science, statistics, law, communications, graphics design, advertising, etc. all open the door into the high-paying world of jury consultants. ASTC does not have any academic or professional requirements for membership.

Is it all just smoke and mirrors?

Probably not. Jury consultants do far more than pick juries. They are involved in venue and community attitude surveys, focus group and mock jury studies, assisting attorneys in presenting their cases more persuasively and understandably, and witness preparation, in addition to other things. Some of these may be enormously valuable - but expensive.

But there are alot of bad jury consultants out there. There are alot of jury consultants who are unqualified, or under-qualified, or who, while competent in some areas of jury consulting, venture outside of their area of competence on a regular basis.

Often, lawyers hire jury consultants so they'll have someone to blame when they lose. That is not a service clients should be asked to pay for. Poorly chosen jury consultants, and lawyers who don't know what they want out of a jury consultant, will nearly always lead to bad results.

A good jury consultant can make a huge difference in case presentation, jury selection, and persuasion. But perhaps more than in any other field of the law, hiring a jury consultant requires the buyer to beware. The selection of what services the lawyer wants help with should be made first - and then a jury consultant with specific expertise in that area should be selected.

Sunday, July 17, 2005

The Inherent Bias of Death Qualification

In light of the fact that Errol Morris' documentary on a Texas death penalty case is due to be released on DVD next week, I thought that death qualification was an issue I should discuss here.

There are roughly four thousand people on death rows across America as this is published. Some, undoubtedly, are guilty. Some are certainly innocent, and we as citizens can only hope their innocence will be proven while there is still time. But, sadly, not one of the people on death row in this country has received a trial before a jury fairly representative of the community in which they were tried. And there is evidence that in each and every case, the juries who tried these defendants were biased against them.

The justification for these statements is found in the unique jury selection procedures employed in capital cases. In a capital case, every individual with qualms about imposing death as a penalty for crime is disqualified from jury duty. This is called “death qualification.” While until 1986, only those jurors who would never vote for death were disqualified, since that time any juror whose judgment would be affected by the sentence involved could be removed.

While many Americans favor the death penalty, many do not, and few believe the death penalty should be used as widely as it is. Many people - including the most conscientious members of society - approach the death penalty only with fear, trepidation and hesitation. Even former Illinois governor George Ryan, a Republican, had enough doubts about the death penalty that he imposed a moratorium on executions in his state. Indeed, prosecutorial misconduct and harmful attorney errors occur in roughly two/thirds of all capital cases. Knowing this, many people who support the death penalty in theory may be removed from a capital jury in practice, because of their extraordinary caution at imposing the ultimate penalty. It takes a great deal of courtroom time, and some pretty intrusive voir dire, to remove any juror who would be so affected.

Because of this, jury selection in capital cases often takes weeks, if not months, as the “death qualified” jurors are isolated by the State. Women and minorities are eliminated at a much higher rate than are white males. (Perhaps as a result of this, capital juries are about 43% more likely to sentence a killer to die if his victim is white.) Death qualified jurors are more concerned about crime, more cynical of defense lawyers, and more likely to be punitive, than society at large. Numerous studies have shown that those who survive the death qualification process are inherently biased towards conviction. People who have no qualms about the death penalty favor the State. They would be more likely to convict in a jay-walking case.

The Supreme Court in the 1986 case of Lockhart v. McCree ruled that the interest of the State in carrying out its death penalty trumps the rights of the accused to a jury fairly representative of the community. The Court believed that the interest of the accused in being tried before an unbiased jury of his or her peers had to give way to the State’s interest in carrying out its death penalty. If those with qualms about the death penalty were allowed to serve on the jury, the logic went, the death penalty would seldom if ever be invoked. Juries would nullify the death penalty, refusing to sentence people to die for reasons the State did not consider adequate.

Hence, because a fairly selected jury would not sentence people to die as reliably as the State would like, the Court allowed States to stack juries against the accused. The jury - historically referred to as the “conscience of the community” - has now been turned on its head. Only those who support the State are allowed to serve - no critics need apply. You have doubts that the death penalty is just? You think the death penalty may be over-used? You think that the death penalty requires extraordinary caution? The Supreme Court not only does not want to hear your opinion - the Court does not even want to allow you to speak. At least, not on a jury, where your opinion would mean the most.

Modern death-penalty law revolves around guiding jury discretion into approved channels. To prevent jury nullification, courts have deprived capital defendants of an impartial jury selected from a fair cross-section of the community, and from a determination of guilt and punishment in accordance with the conscience of the community. Moreover, many prosecutors, as Miller-El shows, are willing to use racism and prejudice, ignoring the Constitution in the process, to further their chances of getting a capital verdict.

Restricting capital jury service to those elements of society who are most inclined to convict hardly provides a balanced or impartial judging of the case. We have excluded any points of view save those of the jurors most likely to convict and sentence a person to die. Then we imagine that the resulting verdict represents the judgment of the community as a whole. Nothing could be farther from the truth.

It is impossible to preserve the core values of the criminal justice system while concentrating jury selection procedures entirely on the prevention of jury nullification, at the expense of a fairly selected jury. Have we really reached a point in this country where we are willing to allow human beings to be executed after a trial before a biased jury, stacked against them and sworn to execute? Apparently so.

Friday, July 08, 2005

If You Teach It, Will They Come?: Why Plans to Teach About the Jury System Won't Work

In recent years, a huge number of organizations have created programs designed to teach kids about the jury system. The American Bar Association's American Jury Initiative has such a program. The American Board of Trial Advocates spent $400,000 designing a program, titled Justice by the People, intended for use in middle schools. The Federal judges have a program, called Courts to Classes, complete with a teaching guide and handout. The Texas Young Lawyer's Association has a program, entitled We the Jury.. The American Jury Institute is developing a PowerPoint presentation for use in classrooms. The National Center for State Courts has a long list of similar programs on their web site.

The limited success of these programs was dramatically underscored in an article in the May Texas Bar Journal. Recently appointed U.S. District Judge Lee Yeakel and two lawyers visited an honors class and spent an hour talking about the jury system, after which the judge remarked the class was "now ahead of 95 percent of the population in knowledge of the jury system." With so many programs being developed, so much good material available, why are 95% of students not receiving an education on the branch of government they are most likely to personally participate in?

The answer is obvious: the jury system is not mentioned in the standardized achievement tests mandated by the No Child Left Behind act. As Bob Berkowitz, an educator with over thirty years of experience, notes "Teachers are narrowing their curriculum to teach to the test. School administrators are becoming score obsessed." In this narrower curriculum, there just isn't much time to teach extraneous stuff.

This leads to two ineluctable conclusions: first, current efforts to get high school and middle school students educated as to the importance and functioning of the jury system are doomed to have only spotty and temporary successes, because every classroom hour spent on the jury is "wasted," so far as achieving higher standardized test results is concerned.

And secondly, the only way to ensure that American students generally have a functional understanding of the jury is to include a module on the jury system in the standardized test questions on American history and government.

This second point presents perhaps a worthier use of some of the energies that have gone into developing jury-studies programs that are redundant, and will not be widely used anyway. If American students do not understand the history, role, and purpose of the jury system, they will not, as adults, be inspired to preserve, participate in, or respect the decisions of, that institution - the cornerstone of American legal culture. Surely, we are all failing if that isn't made part of the test.

Monday, July 04, 2005

My Final Chapter on the Tort Reform Debate

It is increasingly apparent that Wilson's interest in continuing this debate is only to push his book. While it is understandable that would be his interest, it is not mine.

First, I should point out that, contrary to Wilson's claim, I am not a trial lawyer (a term he considers a pejorative.) As the bio on this blog, and my bio on my firm's web site, clearly show, I am an appellate attorney. I do both civil and criminal appeals and complex drafting.

Wilson repeats himself ad nauseum, without contributing much in the way of new ideas. Instead, he takes issues I have not discussed and says "Conrad does not dispute xxx." Of course, what I have not discussed I have neither disputed nor conceded.

Other Cases are Okay for Juries to Consider

Wilson's argument relies wholly on one case - State Farm v. Campbell, which he reads selectively. State Farm involved an insurance company which falsified records and refused to offer policy limits in a case in which its insured was undeniably at fault in an accident which left one person dead and another permanently disabled. It was shown that State Farm had a national policy of denying liability as much as possible, regardless of the facts, in order to minimize recovery. (This is an oversimplification, but it will do for our purposes.) Campbell sued State Farm for bad faith, and the jury awarded $2.6 million in actual damages, and $145 million in punitive damages. The trial court judge reduced this to $1 million and $25 million. The Utah appellate courts reinstated the $145 million.

Wilson claims that State Farm prohibits a jury from considering a corporation's conducts in other cases. He ignores the fact that State Farm was a Utah case. The Supreme Court said that because a State cannot punish a defendant for conduct that may have been lawful where it occurred, a State court cannot consider a corporate defendant's conduct in other states. If this was a federal case, involving a violation of federal law, the "other states" rule would not apply.

What is relevant, however, is that the Court explicitly authorized juries to consider other cases. The Court said that one factor in determining the reprehensibility of a defendant's conduct is whether that conduct involved repeated actions or was an isolated incident. Thus, a jury can properly consider how often and how regularly the complained-of tortious acts takes place when assessing punitive damages, within the jurisdiction of the applicable sovereign - in this case, Utah.

Not Economically Efficient

Moreover, the Supreme Court eschews any claim that punitive damages should provide "economically efficient deterrence of corporate misconduct" -- a concept Wilson claims as a given. According to State Farm, punitive damages are to provide both deterrence AND retribution. (Of course, the possibility of retribution in itself deters.) Never did the Court say that punitive damages need be, should be, or should attempt to be, economically efficient. Retribution is never economically efficient.

In fact, State Farm not only permits, but logically requires, juries to consider exactly the factors I stated juries consider: the wealth of the defendant and the likelihood of the harm being repeated. Clearly, the wealth of the defendant is important, as the deterrence value of the award varies depending on the wealth of the defendant. (The risk of a $100,000 punitive damages award may not deter Bill Gates one iota, while it may dramatically effect my conduct.) Moreover, because juries ARE to consider whether the conduct involved repeated actions, they must also determine whether the conduct is continuing. (If not, there is nothing left to deter, and retribution becomes the only determining factor. And again, the degree of retribution should be judged against that particular defendant; Gates would scoff at a $100,000 retribution award; I would probably cower before it.)

Wilson claims that economically efficient deterrence of misconduct is THE goal of punitive damages. The Supreme Court disagrees, in the case Wilson relies on. Seems rather like the end of the story on that one.

Comparisons with Criminal Cases

It appears that Wilson has no experience with criminal cases. Here, I am at an advantage: I do criminal and civil appeals. For example, he claims that we have elaborate safeguards to prevent criminal juries from imposing unjust sentences. In most states and in federal courts, juries do not impose sentences at all save in capital cases; in those in which juries routinely impose sentences, they are free to impose any sentence from the minimum to the statutory maximum.

Wilson bizarrely claims that criminal defendants have discovery rights greater than those that civil defendants have. Even more bizarrely, he claims that the exclusionary rule is a discovery right. First, the exclusionary rule is not about discovery at all; secondly, criminal defendants have very, very limited discovery rights and (in all but a very small number of states) no rights to conduct depositions, see witness statements before trial, no right to know exactly what theory the prosecution is going to trial on, etc. He gets the indictment, and little else.

Moreover, jury selection in criminal and civil cases proceed by the same rules. While the Sixth Amendment guarantees an "impartial jury" in criminal cases, and the Seventh guarantees only a "jury" in civil cases, this distinction has been erased through statute and court practice.

Excessive Litigation is a Myth

Wilson then claims that tort reform is about limiting frivolous lawsuits, not about capping damages in substantive suits. This is a frivolous defense of the tort reformers. Frivolous lawsuits are by definition losers; what Wilson is complaining about are substantive suits with small economic damages that he considers, in his words, "silly." Such suits cannot economically be litigated without the possibility of punitive and non-economic damages. And that is what the tort reformers want to eliminate.

What Wilson depends upon is a fictitious claim that there is some sort of "litigation lottery" going on. For that, consider the words of Prof. Nancy S. Marder, from her excellent article "Introduction to the Jury at a Crossroad: The American Experience," from the Chicago-Kent Law Review, Vol. 78, pg. 909 (2003):

"Although the McDonald's jury became emblematic in the press for much that was wrong with the civil jury system, this jury was not alone in receiving condemnation for its damage award. Numerous other cases in which the jury awarded damages that the press depicted as excessive contributed to this view of the civil jury as having gone awry. Indeed, if one were to read only newspaper accounts of civil jury trials, one would conclude that most juries award excessive damages, and that they do so because they sympathize with the plaintiffs at the expense of corporations. Coverage of cases involving tobacco, asbestos, and other types of product liability paint this picture. Yet, empirical studies indicate otherwise."

What? EMPIRICAL STUDIES INDICATE OTHERWISE? Public perception, as influenced by the sensation-seeking media, give a false impression of a litigation lottery? Exactly.

Perhaps Wilson should pay some close attention to these empirical studies (and perhaps should also read his own case, State Farm v. Campbell, less selectively). Juries are, perhaps more than any other actors in the American legal system, acting conscientiously and responsibly. This doesn't make good headline news. It is, however, backed up by close examination. It is the truth.