Oregon State Bar Bulletin OCTOBER 2013
Law & Life
A Diversity Within:
The Mystery of the Missing Juror
By the Hon. Susie L. Norby
It is mid-morning on the first day of trial. The large jury venire files into the courtroom in awkward silence. A clerk efficiently ushers jurors to their places according to the seating chart already in the lawyers’ hands. Every seat appears to have a body in it. The clerk calls out: “All rise!” The crowd snaps to attention. A judge strides into the courtroom and takes the bench. “You may be seated,” she says, before the clerk swears the jurors.
The judge introduces the lawyers and their clients, describes the burden of proof, and asks the jurors to sum themselves up in 20 words or less. One juror after another gives an abbreviated statement of who they are. The lawyers jot notes. Everything appears in order. Nothing, no one, seems to be missing. And so, voir dire begins. A lawyer rises and ambles toward the jury box.
“Ms. Marple, I’ll pick on you first. You’ve heard the phrase ‘preponderance of the evidence,’ haven’t you? What do you think that means?”
Ms. Marple struggles through a stilted, halting reply.
“That was not quite right, but a good try, Ms. Marple. I’ll let you off the hook now, thank you. Would anyone else like to take a stab? Mr. Holmes? Do you have an idea what ‘preponderance of the evidence’ means?”
As we visualize this scene, we feel an absence we cannot quite see. A juror is missing. No seat has emptied, no body has been lost. But a juror has clearly vanished. Solving the mystery of the missing juror takes empathy, wisdom and insight. Whoever can it be?
The missing juror we know, but cannot see, is the one that once lived in us. We were once as jurors are now — unsure of the law, intimidated by the power of the court, naively clear about our expectations of justice. But after many years of study, debate about elastic interpretations and humbling realizations of the law’s nuanced complexities, our juror’s brain has become a lawyer’s brain. The distance we’ve travelled from who we were to who we are has carved a chasm between our conscious lawyer self and our forgotten juror self. That chasm also separates us from the twelve people to whom we must entrust the final word on justice.
Our former selves, our juror selves, are like strangers to us now. And so we wonder: Who are these jurors? How do they think? What do they know? Do they understand? Do they care? Can we trust them to do what is right? Does this process work? Can it work with such legally inexperienced decision makers? Or does all our work and effort merely culminate in a coin toss?
As a judge, I have the incalculable privilege of learning answers to these questions, and the answers reconnect me to my own inner juror. I have met with dozens of juries after verdicts and listened to explanations of their processes. Allow me now to dispel some myths and mysteries and share the answers I have collected. My goal is to encourage the construction of bridges across the chasms that separate our long lost, subconscious juror brains and our conscious, hard-won lawyer brains. I believe that remaking this connection can help improve our confidence in, respect for, and appreciation of the jurors that grace our courtrooms every day. It can also build our own confidence, so that speaking to jurors, and selecting them, can become less mystifying and more inspiring.
Jurors come to the courtroom with the same questions about us that we have about them: Who are these lawyers and judges? How do they think? What do they know? Do they understand? Do they care? Can we trust them to do what is right? Does this process work? Can it work with such legally convoluted thinkers in charge? As these questions whirl through their minds, many jurors also feel concern about their wish to earn the respect and confidence of the very lawyers they doubt, and of their fellow jurors. This is where they begin.
Myth #1: Jurors Arrive With Minds Made Up
With few exceptions, jurors do not come to the courtroom with unyielding preconceived notions about the greed of plaintiffs, the motives of defendants or the likelihood that a particular claim or charge has merit or is bogus. They come with open, curious and unprejudiced minds. People untrained in the law are far less inclined to assume patterns and predict outcomes than those of us the law has relentlessly ingrained with a compulsion to glorify consistency. We lawyers devote our careers to identifying patterns, categorizing sequences and anticipating judicial interpretations.
But before our legal training, once upon a time, we took things as they came. Our long-ago juror brains held opinions lightly and considered them subject to change without notice. It is only our lawyer brains that reflexively commit to opinions, relishing opportunities to defend them with our inexorable logic. The longer we practice law, the more we presume that other people are as vigorously committed to their opinions as we are. But it isn’t true.
Getting in touch with our forgotten inner juror begins with remembering a time when our opinions were not carved in stone, but merely tentative theories easily shaken out of us by a feisty law professor’s skillful inquisition. Whatever doubts jurors have about lawyers, they respect our legal acumen and generally want to live up to it with their verdict. They come to serve, to meaningfully contribute and to individualize their decision to the case they hear. Jurors want their experiences in court to reinforce their confidence in justice. Forcing a preconceived outcome would undermine their goal.
Myth #2: Jurors’ Primary Objective Is to Get It Over With
While many jurors acknowledge that they come to court hoping not to stay, I have it on excellent authority that their wish to depart falls to a very low priority, or disappears entirely, once they are selected and sworn. It is a misconception that jurors grow angry in lengthy trials and carelessly rush through deliberations. I received the most compelling proof of the contrary in a nine-week civil jury trial. The case was originally expected to last six weeks, and the jurors were told to plan accordingly. In the seventh week, the trial’s end was nowhere in sight. A juror delivered a letter to my clerk with a note from her employer. The letter informed me that jury duty had become too onerous for her and her family, that her inability to work was about to trigger suspension of medical coverage her spouse needed for an ongoing condition, and that her employer’s business was suffering significantly from her absence. I met with the attorneys to discuss the juror’s situation, and we agreed to allow her to step down and to replace her with an alternate.
I invited the juror to my chambers to thank her and release her. Before I uttered much more than a word, I saw a tear roll down her face. I asked what it meant. She told me that she was compelled to submit the letter by her husband and employer, but she did not want to go. I reassured her that we could continue without her, and that she had done enough. She replied, “It’s just not right. This is hard, but there are so many others on the jury who have it harder, yet who are determined to see it through. My troubles are comparatively small. My husband and employer will manage, but only if you order me to stay. I am invested now. I owe this duty to our community, and I don’t want to quit. Please make me stay.” We did as she asked, and she completed all nine weeks of trial.
Her story, and those that went untold in that lengthy trial, illustrate how seriously jurors take their duty of service. Understanding this phenomenon reminds me once again of our forgotten inner jurors. Our current perspective as lawyers is diluted by our experiences handling hundreds of cases. Each has been important to us, but over time, we have had to recalibrate our perception of the magnitude of them all. For jurors, though, their case is always the first (or among the first) they will ever hear and decide. There is no timeworn softening of their perception of the magnitude of the work. Our forgotten inner juror can remember our earnest sense of importance in our first trial and the monumental impact that feeling had on us. Even when we wanted to go home, we stayed at the office, we stayed at the client meeting, we stayed at the court, because we felt the work was greater than ourselves, and we felt invested in completion.
That sense of enormity is something we lose along the way, so it’s something we easily forget that jurors still feel. In fact, though, that sense of importance and larger meaning overrides jurors’ instincts to hurry back to their usual lives and instills focus and commitment while they work within the courts.
Myth #3: Jurors Make It Up As They Go Along
Ultimately, many lawyers’ most significant concern involves the mystery of jurors’ decision-making process. What do they do in deliberations? If their verdict is not the one expected, does that mean that they lacked intelligence? Does it mean that they didn’t care about the outcome and tossed a coin to end it? If not, what were they thinking?
I do not ask jurors how they reached their verdicts, especially when their verdicts surprise me. But almost without fail, juries want to explain. Jurors show me charts with damages figures, sections of jury instructions, details in photographs. They explain their logic, their math, the concerns they took most seriously, and they ask if I think they were right. They care a great deal about getting it right. They take turns telling me which important point each one of them “discovered.” They tell me their final interpretation of confusing jury instructions and describe how the interpretation changed their analysis of the case and altered the vote on the verdict.
Prior to these conversations, I would not have believed the depth of their determination or the extent of their grasp of details large and small. Factual details, legal details, visual details — nothing is missed. The fact that there are twelve of them inevitably means that they retain more details as a collective body than I could ever retain as a single individual. It also means that they consider more alternative theories than I could ever come up with alone.
Jurors see reaching a verdict as completing an open-book test that must not be failed. In the end, they work the law and the facts just as our forgotten inner jurors did when we were new to law school. We read and re-read the law. So do they. We dissected the facts. So do they. We arranged the facts around the law, then tried it in reverse. So do they. We did not throw our hands in the air and give up — we discussed cases with our study group; we used the tools the professor gave us; we reached the best answer we could with the pieces we were given. So do they. As serious as we were when we first attempted to conquer the law, so are they. Their methods are not mysterious. They are methodical.
Searching for the missing juror in ourselves is an enlightening and rewarding venture. It is a reminder that there is diversity not only among us, but within us. We are not only our present selves, we are the people we once were, but have forgotten. We are the sum of our experiences, fears and expectations, just like the strangers we meet in the jury box.
One small step toward embracing diversity in the outside world, and bridging the chasms between us and those we don’t think we understand (like jurors), is to recognize and embrace the diversity within us, between who we are and who we have been in the different stages of our lives. The mystery of the lost juror is a mystery of aging, of changing and of coming back to trusting ourselves so that we can better understand and trust the others we rely on in our communal quest for justice.
ABOUT THE AUTHOR
The Hon. Susie L. Norby is a judge in Clackamas County Circuit Court in Oregon City.
© 2013 the Hon. Susie L. Norby