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Archive for the ‘Challenges to the jury system’ Category

Today, we want to take a moment to highlight the Civil Jury Project at the NYU School of Law. This group examines how the civil jury trial became a vanishing feature of the American legal landscape and looks at the consequence for the legal system and society more broadly. The Civil Jury Project includes practicing attorneys, academics, trial consultants, and others interested in the future of the civil jury trial.

Recently, a nationwide attorney survey was completed by members of the American Society of Trial Consultants in an attempt to gather information on what is causing the decline of the civil jury trial and what recommendations practicing attorneys have to help save the future of the civil jury trial.

Here’s how the survey is described in the free report:

This survey addressed the current involvement by attorneys in jury trials, how they viewed the decline in jury trials, their perceptions of the causes for this decline, their experience with jury trial innovations, and what (if anything) they thought could be done to increase the number of jury trials.

We encourage you to read this initial report from the Civil Jury Project and the ASTC and see what this interdisciplinary group is seeing, recommending, and planning.

Here is the full text of the announcement from the ASTC:

“We are pleased to announce and provide original research produced by ASTC members for a worthy cause. ASTC would like to recognize the following members who recently completed an important survey on the current state of civil trials for CJP at NYU School of Law.

Charlotte A. Morris, M.A. (Project leader)

Tara Trask

David Barnard

Jeffery T. Fredrick, Ph.D.

C.V. “Pete” Rowland, Ph.D.

Susan Macpherson

With a special thanks to Stephan D. Susman Esq. and Richard Jolly.

The Civil Jury Project is engaged in an empirical assessment of the current role of the jury in our civil justice system, the reasons for its decline, and the impact of that decline on the functioning of the civil justice system overall. The basic question is whether jury trials continue to serve the role anticipated by the Framers of the Constitution. Relatedly, it is important to examine the consequences of the decline and what other institutions may currently fill the void.

To help understand the current state of civil jury trials, the American Society of Trial Consultants (ASTC), as part of the Trial Consultant Advisory Group of the NYU School of Law Civil Jury Project, conducted a survey of lawyers who try cases in state and federal courts across the country.

This survey addressed the current involvement by attorneys in jury trials, how they viewed the decline in jury trials, their perceptions of the causes for this decline, their experience with jury trial innovations, and what (if anything) they thought could be done to increase the number of jury trials.

Learn more about CJP/NYU and our work with them in their monthly newsletter.

Citation: Civil Jury Project. (2016). Summarized Results and Recommendations 2016 Attorney Survey: Declining Civil Jury Trials.”

We at Keene Trial and The Jury Room blog hope you will read this report and stay abreast of this important work to address the shrinking civil jury trial and, ultimately, improving our litigation advocacy.

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We are now in ABA’s Blawg 100 Hall of Fame!

Monday, November 30, 2015
posted by Douglas Keene

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We’ve recently been informed that The Jury Room has been inducted into the ABA Journal Blawg 100 Hall of Fame! Okay, it’s not a Pulitzer, but we are wildly happy about it. To our way of thinking, it is the greatest honor The Jury Room could be given. We appreciate the recognition. Closer to truth, we are shocked. Every December from 2010-2014 we have been delighted to be included in the Blawg 100, but this was not even on our radar screen. Here’s a link to the 2015 ABA Blawg Hall of Fame and a link to the 2015 Blawg 100 honorees.

Here’s how the ABA describes the Blawg 100 Hall of Fame:

In 2012, we established the Blawg 100 Hall of Fame for those blogs which had consistently been outstanding throughout multiple Blawg 100 lists. The inaugural list contained 10 inductees; this year, we added 10 more, bringing the total to 40.

And here is how they described this blog on their roster:

Trial consultants Douglas Keene and Rita Handrich find the research to alternately back up what you think you already know about human psychology (Is rudeness contagious? Yes.) and alert you to the unexpected (Are “beer goggles” real? No.) Posts are both fascinating reads and lessons on how not to base your cases on stereotypical assumptions.

We were inspired to begin blogging by Anne Reed (formerly of Deliberations blog and now leading the charge at the Wisconsin Humane Society). Once we got started blogging, we realized it was a wonderful way to keep up with the changing literature and to share what we were learning along the way. Looking back over the 900+ posts, we still find it interesting to blog as well as a great impetus for our own continuing education. Thank you, ABA Journal, for your recognition of our work over the last 6-1/2 years.

Doug and Rita

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As you know by now, I edit The Jury Expert for the American Society of Trial Consultants and we try to alert you when new issues upload 4 times a year. This issue is special since it focuses on the perhaps premature reports of the death of the civil jury trial. Here’s the Editor Note from the new issue of The Jury Expert explaining how it all evolved and with some extra  links thrown in so you can go directly to the articles themselves. –Rita

When we at The Jury Expert saw Renée Lettow Lerner’s writing on the collapse of the civil jury system in the Washington Post when she guest-blogged for the Volokh Conspiracy it was clear the ideas she expressed were not ideas that resonated with our own experiences in the courtroom. So we asked her to write for our readers here at The Jury Expert and she graciously agreed. Professor Lerner discusses her perspective and a trial consultant (Susie Macpherson) and a well-known litigator (Tom Melsheimer) offer very different points of view.

After Professor Lerner’s thoughts on problems with the US justice system, we have an article on changes in the Swiss civil system as they moved to abolish jury trials. This article is by two Swiss scholars (Gwladys Gilliéron and Yves Benda) and an American scholar (Stanley Brodsky). It describes the existing Swiss system and how abolishing the civil jury trial changed (and did not change) the application of justice in Switzerland.

Shortly after Renée Lerner’s work in the Washington PostAdam Benforado wrote an excerpt from his new book UNFAIR that was published at The Atlantic website and titled: “Reasonable Doubts About the Jury System: Trial consultants allow the affluent to manipulate the biases of those who judge them, putting justice up for sale”. As you might expect, the article isn’t likely to fit the point of view of most trial consultants, so his viewpoint is important for any trial consultant to understand. I contacted Professor Benforado, and invited him to write an article for us that addressed the issues he raised in The Atlantic. He agreed, in the face of knowing there was vigorous disagreement among trial consultants with the position he took in The Atlantic. His article elicited thorough responses from Diane Wiley (representing all trial consultants), Jason Barnes and Brian Patterson (representing visual trial consultants), and Stanley Brodsky (representing academic and research trial consultants).

Following those first three articles about problems in our justice system, Hailey Drescher (a trial consultant) offers an interview with Steve Susman (a well-known litigator) and Tara Trask (a trial consultant) on Susman’s new Civil Jury Project at New York University. This ambitious, long-range project is unlike anything that’s been done before in this country and will attempt to examine the civil jury trial and offer suggestions for improving it. Read the interview if you want to know more about this project or the upcoming conference they will be sponsoring.

Then we move on to other exciting new research and ideas on the jury system from here in the United States. Krystia Reed and Brian Bornstein (academic researchers) offer recommendations on how to use joinder differently if you are in a civil versus a criminal trial. Sonia Chopra and Charli Morris (trial consultants) respond to this article and offer insightful questions and suggestions on implementing the research. Richard Gabriel (a trial consultant) saw the issue of peremptory strikes in the New York Times (again) and provides us with new ways to think about strikes (both peremptory strikes and strikes for cause). Allen Campo (a trial consultant) describes a newer way he’s been helping attorneys understand their cases—he calls it a feedback group. And finally, Bill Grimes updates us on the research literature about deception—do we know how to tell who’s lying yet?

It’s an intriguing quandary—the numbers of civil juries are declining, yet there is a plethora of ideas, programs, research, and strategies for improving our ability to work together to improve litigation advocacy. Is our system dying? That is questionable, although it is undoubtedly changing, as it always has. The energy around these new and exciting ideas makes me think perhaps our system isn’t dying. It is merely evolving and thus has to face hard questions as a new definition of our justice system emerges.

The role of trial consultants has evolved over time, as well. The idea that the trial consulting profession contributes to bias (while most trial consultants feel they are in the business of rooting out bias, not creating it) produced deep reactions from responders who are members of the American Society of Trial Consultants. Many of the founders of the profession are still alive and actively practicing—trial consulting is a young profession. I appreciate the measured responses from our trial consultant members in this issue and I appreciate the generosity and courage shown by Renée Lettow Lerner and Adam Benforado in writing about and standing behind their convictions despite disagreement. Both their offerings and the thoughtful commentary by ASTC members give us all much to consider. Combined, these contributors keep The Jury Expert an intellectually and morally stimulating forum, for which we are all grateful.

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A Gideon Bible where it's often found, in a hotel nightstand.It’s no party for the sequestered juror. No morning paper. No TV. No internet cable or WiFi access in your room. No phone. They even take the Bible from your bedside table. While jury sequestration is often requested in high-profile trials, it is rare to actually have it happen. Jodi Arias asked for it and was refused. So did Conrad Murray. Casey Anthony’s jury was sequestered for 43 days—and rather than do an official change of venue, the jurors in her case were chosen in Clearwater, Florida and then shipped 100 miles to Orlando, Florida without access to cell phones or internet. Charles Manson’s jury was sequestered for 225 days. Manson’s jury held the record until the OJ Simpson jury was sequestered for 265 days.

Circuit Court Judge Debra Nelson’s recent decision to sequester the Zimmerman jury means all 10 people [6 jurors and four alternates] will stay in a “hotel for the duration of the trial, which is expected to take two to four weeks”. While the Zimmerman trial is not expected to run longer than one month and the jury selection itself is expected to take at least as long as the trial, “it cost the state of Florida $350,000 to sequester the jury in the Casey Anthony trial for 43 days”.   Judge Nelson reversed her initial decision not to sequester the jurors after several jurors appeared to be trying to obtain seats on the jury for their own personal reasons.

A potential juror at the George Zimmerman trial who told the court he had little knowledge of the case apparently indicated otherwise on Facebook. I CAN tell you THIS. ‘Justice’…IS Coming, the juror appeared to write of the Zimmerman case on the Facebook page for the Coffee Party Progressives, a page with which he was confronted in Judge Debra Nelsons courtroom.”

Supporters of sequestration say that the isolation means you hear the evidence without media bias or community pressures. You focus on the evidence and make a decision based on what is admissible and not what is posted on social media sites or discussed in the ever-present media. Jurors who are sequestered bond and some say they can thus deliberate more collaboratively.

Critics (and they are many) say that sequestered jurors get “too chummy”. They begin to think so similarly that the goal of a group coming together with diverse opinions is completely lost to “group-think”. There is a very real possibility that jurors will be irritated by being cooped up for so long and stop paying attention, react against both parties, et cetera. And sometimes, they fall in love or various permutations on that theme.

Finally, it is often said (in hindsight) that jurors fail to deliberate thoughtfully following sequestration because they “just want to go home”. This “just want to go home” theory was often used to explain the “quick” Casey Anthony jury’s ‘not guilty’ verdict. Over the last 20 years I have interviewed thousands of jurors and mock jurors, and this is not my experience. Jurors invariably take their responsibility very seriously. Given the seriousness with which jurors approach their task, this idea simply is simply wrong, as I explained at the time on CNN’s Opinion page.

Still others question if it can even make sense anymore in our lives of constant media saturation to sequester juries. Attorneys still seem to think so. Three recent examples of why attorneys request sequestration are the Google mistrial rationale, the Nancy Grace mistrial rationale, and the Media meddling rationale.

Google mistrial rationale: “In an age when Google is a verb, and many rely on their phones to wake them up, schedule their lives, and pay their bills, is it still reasonable to expect juries to make decisions in a vacuum? Yet sequestration may be the only option. Judges have struggled to keep up with a growing number of outlets, and do not communicate about the case has become do not Tweet.”

Nancy Grace mistrial rationale: Nancy Grace’s constant pro-Prosecution coverage of the Casey Anthony trial resulted in the Conrad Murray Defense requesting sequestration at least while Nancy Grace was on the air. “Attorneys for Dr. Conrad Murray said the case should be sequestered to prevent the panel from being influenced by media reports. Specifically, the jury should be sequestered during the hours that television pundit Nancy Grace is on the air.”

Stop the media from meddling rationale: “Lawyers for accused serial killer James Whitey Bulger today threatened to ask to have his jury sequestered for the anticipated four-month duration of his blockbuster trial, arguing the Boston Globe is poisoning the pool in its fight to free two reporters from the defense witness list.”

The financial troubles in the court system coupled with the strains sequestration places on jurors  and complicated by the fears (and often reality) of public attacks on jurors rendering an unpopular opinion, will make juror sequestration a hot topic for years to come.

[If you still want to know more about this topic, you can see an April 2013 slide show on sequestration (with all the nitty gritty details) here.]

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Runaway juries or runaway urban myth?

Wednesday, September 21, 2011
posted by Rita Handrich

Despite the constant headlines about frivolous lawsuits and ridiculously high awards, when the GAO came out with a report on lawsuit awards back in 2003, it received little fanfare even though it strongly contradicted media reports of excessive jury awards.  The same results have been seen every year.  Now it’s 2011 and we’re hoping a new report gets a bit more attention.

This time it’s a report from the Center for Justice and Democracy, a nonprofit consumer group. The Center uses data from the Department of Justice and other sources to point out that juries seldom award punitive damages in addition to compensatory awards. Further, when punitive damages are awarded, they tend to be fairly modest (a median of $64K in 2005).

Key findings from civil trial data in the nation’s 75 most populous counties include:

“Winning plaintiffs received punitive damages 6 percent of the time in 2001, and 5 percent of the time in 2005.

From 2001 to 2005, the percentage of successful medical malpractice plaintiffs awarded punitive damages dropped from 4.9 percent to 2.6 percent.

From 2001 to 2005, the share of winning plaintiffs awarded punitive damages in product liability trials dropped from 4.2 percent to 1.3 percent.”

Hardly an example of runaway juries. In fact, as author Emily Gottlieb says,

“The availability of punitive damages protects us all by holding wrongdoers accountable for egregious misconduct and deterring its future occurrence.  Laws that restrict punitive awards place the public at serious risk, and lawmakers should not be misled by falsehoods spread by corporate special interests about this most valuable and important feature of our civil justice system.”

We all like to think we are independent thinkers, assessing the facts and evidence before us and drawing conclusions that make sense based on new information that comes in. If you, like us, have spent time observing through darkened windows while focus groups or mock juries deliberate (and eating way too many M&Ms) you know it isn’t true.

We hope you’ll read the complete report from the Center for Justice and Democracy here. And that you’ll forward the report to your friends and to opposing counsel. That you’ll blog about it. We need to spread the word. Don’t let history repeat itself. Spread this new report far and wide.

Gottlieb, E. (2011). What you need to know about punitive damages. Center for Justice and Democracy.

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