| Oregon State Bar Bulletin — APRIL 2007 |
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(and it's more than you think)
By Janine Robben
"…You like me! Right now, you like me!"
What litigator, upon receiving a favorable jury verdict, hasn’t had that little Sally Field moment?
But the reality sometimes comes closer to Jon Stewart: While jurors appreciate actually getting to sit on juries, they like the lawyers they hear from "not so much."
"They (the lawyers) are performers on the stage of the court and need to take that job seriously," one juror wrote Multnomah County Circuit Court Judge Janice Wilson in response to Wilson’s informal survey of jurors’ "pet peeves."
More specifically, jurors say that they sometimes don’t like the way trial lawyers conduct voir dire, the way they treat the jurors themselves or the way they present their cases.
American Experience
The concept
of trial by lay "judges" goes back to
ancient Greece and Rome: the 12-person jury, to Anglo-Saxon common
law.
In the United States, the right to trial by jury in criminal cases was embodied in the original Constitution, while the right to trial by jury in civil cases "where the value in controversy shall exceed twenty dollars" was added by the 7th Amendment. (The Oregon Constitution also guarantees the right to a jury trial in both criminal and civil cases.)
In their 1966 book The American Jury, Harry Kalven Jr. and Hans Zeisel described the "Anglo-American jury" as "a remarkable political institution."
Some four decades later, two jurors who wrote letters to Multnomah County’s Wilson about their recent experiences in her courtroom expressed a similar sense of admiration.
"It (jury service) renewed my hope, and reminded me that every one of us deserves to be treated with these basic human rights. …[t]o come to know and deliberate with my fellow jurors was a pleasant reminder of the common good in the majority of us," wrote one.
The other, who described himself as a first-time juror, said that "…within that one-time context, [jury service] has completely reversed nearly all my preconceptions as to the nature of a criminal trial. …I just want you to know that this citizen is a 100 percent convert to the nobility of the trial by jury system."
A lot of Oregonians get to experience that noble system firsthand. In 2005 — the last year for which complete data is available — there were 1,795 felony trials statewide, 1,802 misdemeanor trials and 332 civil trials, according to statistics maintained by the Oregon Judicial Department.
And for every juror who actually got to sit on one of those trials, there are many more who did not; in Multnomah County alone, 167,837 jurors were subpoenaed in 2005.
"We try not to run out because that’s very expensive to the parties," says Douglas Bray, the county’s trial court administrator and a member of the Oregon State Bar since 1987.
For those jurors who simply sat in the courthouse’s main jury room, the experience is nothing like that described by Wilson’s letter writers.
"The biggest thing jurors are frustrated by is simply wasting their time," says Bray. "When they come in and don’t get used, they perceive that it was really a wasted day, when very often having the jury there is what forces people to work things out."
Multnomah County has adopted several strategies to eliminate that negative response. Over a period of years, it gradually reduced the term of trial jury service from one month to its present "one day, one trial" system, in which jurors who don’t get picked for a trial only have to serve one day.
"The one-day system makes it pretty easy to serve," says Bray, noting that the literature in his field recommends that "everyone should work towards the standard of one day or one trial." (So far, seven of Oregon’s 36 counties have adopted "one day, one trial." Those counties comprised 70 percent of the state’s population as of July 2006, according to James Giordano, court programs analyst for the Oregon Judicial Department.)
In addition, judges like Wilson are engaged in various efforts that she describes as "all part of the same thing: trying to help jurors understand the importance of service and make it easier for them to do their job as jurors."
"My efforts go back to the days when we established Court Care," says Wilson, referring to the in-courthouse program that provided childcare to jurors’ children before "one day, one trial" reduced the demands of jury service. (Court Care now is for litigants’ children.)
In 1999, Wilson — who describes herself as "passionate about juries" — took an informal survey of jurors’ "pet peeves." The survey elicited 77 responses from jurors who had served on nine different trials, including one collective response from a 12-person panel.
Wilson says she writes letters to each juror who serves in her courtroom, even on cases that resulted in mistrial. "I understand how frustrating it is to sit through this and not get to make a decision," she says. "I get letters back fairly regularly."
Wilson says she also tries to stay and meet with her jurors after they have been discharged.
"I tell them I’m there to answer
procedural questions and to take suggestions about improving the system: ‘I
don’t want to hear about your deliberations,’" she says.
That’s Why They Call It Voir
Bore
If lawyers want to make a good impression on jurors, they
often don’t get off to a very good start.
"We all hear that voir dire is frustrating for jurors," says Yamhill County District Attorney Brad Berry, who helped to organize "The Jurors Speak: Observations from the Jury Box," for the bar’s Criminal Law Section’s annual CLE on April 6.
Even people who have an insider’s view of the purpose of voir dire don’t necessarily enjoy it.
"There’s no doubt, from my own experience as a juror, that there’s a lot of wasted time," says Chris Dominic, a jury consultant with Tsongas Litigation Consulting, Inc., in Portland who served on a civil personal injury case in Multnomah County.
"Asking people questions that are confusing to answer or don’t have a really obvious answer results in no one saying anything," Dominic elaborates, "and a tumbleweed of silence blows through the room."
Dominic, who has debriefed numerous mock juries, says jurors also are annoyed when attorneys ask questions in voir dire like "Can you be fair?" and "Can you give me a fair shake?"
"After five or six times, it becomes incredibly annoying," he says.
But sometimes litigators also ask questions in voir dire that intrigue rather than frustrate, waste time and annoy.
"I was really impressed with how they actually were trying the case before it even started," says Jeff Williams, an art director at the ad agency Weiden+Kennedy who recently heard two Multnomah County attorneys try to pick a jury for a trial with a somewhat unique fact situation. (See sidebar.)
"It was like neither was going to let the other get a leg up," says Williams of his impression that the attorneys were pre-trying the case, a practice that many judges don’t allow. "Both attorneys did a good job. It wasn’t just easy questions (in voir dire): I knew the trial wasn’t just going to be black and white."
For those litigators who aren’t as good at voir dire as those Williams heard, there’s still hope.
According to the multi-state jury consulting firm DecisionQuest, the idea that "jurors always remember the first impression you make during voir dire" is a myth.
"Depending on the length of the voir dire process, jurors will certainly observe you and size you up during jury selection," the firm advises on its website. "And, indeed, it is important that you attempt to look competent, sincere and likeable."
However, the website says, especially if voir dire took one-half day or less, jurors say they often "don’t remember much at all" about the voir dire process because they are worried about other things.
In fact, say the consultants at DecisionQuest, "they (jurors) often have more impressions of their fellow jurors" than they do of the litigants.
Of the trial itself, however, jurors tell judges, jury consultants and anyone else who will listen that they have lots of impressions, not all of them favorable.
"I always start with, ‘How do you think the lawyers did?’" Patrice Truman, who has her own jury consulting business in Berkeley, Calif., told the Bulletin. "It’s a good icebreaker. People always want to critique lawyers. They’ll always say, ‘It was different from TV.’"
Truman talks to jurors from a unique perspective: She worked for a Chicago ad agency, doing focus groups on products, before going to law school and then becoming a jury consultant.
"You know that teardrop logo on dairy products, the Real symbol?" she says. "I took that all around the country. I had that experience of dealing with the public and how the public perceives things, how they react."
According to Truman, jurors "want lawyers who are prepared.
They want to get up from the whole proceeding and be able to say, "I
would hire him if I ever need a lawyer.’ So I tell lawyers, ‘You
are marketing yourself to a whole room full
of people.’"
Truman says that it’s also important for litigators to know how to work courtroom equipment; to limit the amount of demonstrative evidence they use so jurors don’t feel overwhelmed; and to make sure that jurors know who’s who.
"In a big trial with a lot of names, have a chart divided by party, with names in alphabetical order," advises Truman, whose firm does mostly civil cases. "You’ve got to make it quick and easy. And make sure that the names chart stays up."
Truman says that in addition to helping clients by conducting mock trials and/or advising on actual jury selection, she sometimes is asked to interview jurors post-trial.
"Sometimes a client calls and says, ‘I won, and I want to know why I won,’ " says Truman. "After they leave law school, the only feedback they get is from jurors."
In addition to providing feedback to individual clients, Truman
also makes some of what she learns from juror interviews available via her
newsletter, "In Jurors’ Own Words," which she publishes on
her website. Past topics have included: "Jurors’ Perceptions of
Mistakes, Blunders, and Other Errors by Trial Lawyers;" "We the
Jury…A Letter to Counsel
After Trial" and "Can We Talk? A Spirited, First Time Juror Tells
Us What He Really Thinks."
Dominic, the Portland-based jury consultant, has talked to jurors following mock trials and says he’s noticed a difference in jurors around the country.
"Northwest jurors, in general, tend to be very sensitive to overt persuasion or oratorical tactics," he observes. "They’re an almost perfect audience for subtle tactics. A lot of the over-the-top stuff, making really obvious appeals, can backfire on you. Be as low key as possible."
Dominic says he doesn’t know for sure why regional differences exist.
"But people in Texas don’t seem to be as offended (by overt persuasion or oratory)," he says. "Being over-the-top in Texas isn’t the same thing."
What Jurors Are Saying
Multnomah
County’s Wilson says the jurors who responded
to her informal survey would have thanked Dominic for his remarks.
"Overdramatizing," "grandstanding" and "attempting to play on emotions" all were comments that she got back.
"Thirteen noted facial expressions, like smirking," Wilson says.
Wilson says another common complaint is the way litigators treat jurors.
‘"Don’t confuse lack of knowledge with lack of intelligence,’" one juror wrote.
Another said that "Expert witnesses need to learn to not talk down," while another noted that "It’s annoying when the lawyer says, ‘only a fool would not agree…’"
Wilson says that jurors are more savvy than some lawyers think.
"Jurors do get upset about how they’re treated and if lawyers don’t think they know what’s going on," she says, recalling an instance in which a juror told her that "We could see that they were bumping all the educated, smart jurors (in voir dire); were they worried about their case?"
Wilson says that if she were doing her juror survey now instead of in 1999, she would advise trial lawyers to speak more clearly, loudly and concisely.
"Especially for us old folks," she says with self-deprecatory humor. "The rate of speech is much faster today, especially among younger lawyers, because they talk at that rate among their peers and nobody has a problem."
Wilson says another area in which litigators can boost their jurors’ impression of them is in the decidedly nonglamorous area of jury instructions.
"I frequently think lawyers don’t pay enough attention to instructions, especially early in their case," she says.
Wilson, who began working more than 10 years ago on how jury instructions can be made more clear, frequently hears from jurors how helpful instructions can be, especially if the jurors can replay or read them in the jury room.
"I appreciated so much your having that tape recording of your instructions to the jury," one juror wrote Wilson. "As we played and replayed your definitions, you could see the fog lift."
And another wrote Wilson: "My conception of legal definitions as unworkable hair-splitting [was] wrong! I found the legal definitions freed me from the bombardment of my biases and what-ifs and conjectures."
When all is said and done, those who know jurors best — judges and jury consultants — say that trial lawyers would do well to heed what jurors have to say.
"The way I do things in trial is probably more driven by my experience as a juror than anything else," says Wilson.
Dominic, who says his own stint as a juror was "a great experience," says that the verdict in that case was 10-2 or maybe 11-1, with him in the minority.
"Afterwards," he says, "it occurred to me that the jury’s decision was better than mine."
ABOUT THE AUTHOR
Janine Robben has been a member of the Oregon State Bar since 1980.
She is a frequent contributor to the Bulletin.
© 2007 Janine Robben