Dear Readers,
Welcome to the December edition of the Civil Jury Project’s monthly newsletter.
This issue features a piece describing a recent law review article by one of our academic advisors—Professor Christopher T. Robertson of the James E. Rogers College of Law—and two colleagues examining the efficacy (or lack thereof) of asking jurors to self-diagnose bias. Another piece by a former research fellow, Assistant Professor Anna C. Offit of the SMU Dedman School of Law, examines the value of juries in the context of the recent Guyger trial. Finally, the issue includes two articles on the decline in jury trials: The first, by the Hon. Ron Spears (Ret.), asks whether the jury system must adapt or face a dinosaur-like extinction; the second, a 2016 piece by legal journalist Ben Weiser of the
New York Times
, describes the decline in both criminal and civil jury trials in Manhattan. The newsletter also includes a detailed testimonial from a former juror, Matt Hovey, about his experience serving on a civil jury.
Thank you for your support of the Civil Jury Project. You can find a full and updated outline of our status of projects on our
website
. In addition, we welcome op-ed proposals or full article drafts for inclusion in upcoming newsletters and on our website either by email or
here
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Sincerely,
Stephen D. Susman
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December 10, 2019
Jury Improvement Lunch
Wichita, Kansas
February 19, 2020
Dinner Event by the Atlanta IP Inn of Court: "How to Help Juries Decide Patent Cases"
Atlanta, Georgia
April 1, 2020
Dinner Event by the Combined Minneapolis Inns of Court: "Jury Trial Innovations"
Minneapolis, Minnesota
April 23, 2020
Jury Improvement Lunch
Fort Lauderdale, FL
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The Inability of Jurors to Self-Diagnose Bias
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By Christopher T. Robertson, David Yokum, & Matt Palmer
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An adapted extract from the full article, originally published in 96 Denver Law Review 869 (2019).
Whether criminal or civil, litigants are guaranteed the right to an impartial jury. The voir dire process engages jurors in a colloquy to screen panels of potential jurors and remove unduly biased persons. When a juror indicates some feeling or opinion about the litigation, attorneys, facts, or law of the case, the standard practice is to ask the juror if they can set aside that feeling or opinion, and apply the law as instructed. In short, “can you be fair and impartial”? This is sometimes called “the magic question,” because when a juror reports that he or she can be fair and impartial, then it is highly unlikely that a litigant’s challenge for cause will be successful. We sought to explore whether this colloquy in fact provides useful information to the judge trying to impanel an impartial jury.
Psychology Behind Self-Diagnosing Bias
A wide variety of biases and prejudices—from racial animus against the plaintiff to professional affiliations with the defendant—might inflict jurors. For any of these biases, the self-diagnosis task that the court asks of jurors can be usefully analyzed as part of a more general process that psychologists call “mental contamination.” Scholars have explained that, to succeed in eradicating such contamination, a person must: (1) be aware that mental contamination exists; (2) be motivated to correct the bias; (3) be aware of the direction and magnitude of the bias; and (4) be able to adjust his or her response.
Consider this process when, for example, a potential juror has been exposed to pretrial publicity ("PTP") that portrays the defendant negatively based on facts that would be inadmissible at trial. To suppress the biasing influence of this information, the potential juror must first realize the exposure to pretrial publicity has affected his or her judgment, despite a large body of psychological research that people are often ignorant that a bias exists. A step-two failure of motivation would occur if the juror were indifferent about his or her role as a juror, or simply disagreed with the judicial instructions that the impact of pretrial publicity constitutes a bias worthy of eradication. Even if aware and motivated, it is highly unlikely that a juror would have insight into how much bias the PTP exposure caused, a failure of step three; people usually undercompensate or overcompensate for a perceived bias. A failure at the final (fourth) step entails an inability to correct for a bias that is precisely known and unwanted; that is, psychological research suggests some bells cannot be unrung. However, research on the “bias blind spot” indicates that, in general, people are better at diagnosing bias in others than in themselves.
Ultimately, the magic question asks the juror to predict and then accurately report his or her likelihood of accomplishing those tasks. That sort of diagnosis is hard enough, but it’s even harder to diagnose one’s own bias. A juror, despite accurately self-diagnosing that he or she cannot overcome a lingering bias, might nonetheless publicly insist that he or she will act impartially, a phenomenon known as “social desirability” bias. The juror adheres to the social norms of being a good and fair person, that is, of upholding a civic responsibility as any decent citizen would.
Some attorneys or judges may even exploit this effect, “rehabilitating” or browbeating jurors into saying they can be fair, even if this further undermines the real diagnosticity of the colloquy. In short, despite an accurate self-diagnosis of bias, the juror may also earnestly hope that he or she can set aside the lingering bias and serve as a fair and impartial juror.
Our Experiments
To test the assumption that juror self-diagnosis is accurate—an empirical claim—we ask whether a juror, whose impartiality has been questioned due to exposure to a potentially biasing factor, can nonetheless decide the case the same as if he or she had never been exposed to the biasing factor. We also test to see whether other-diagnosis, unlike self-diagnosis, might provide a viable voir dire tool, given that people diagnose bias in others better than in themselves.
We implemented this analytic strategy empirically by way of a between-subjects mock jury design on a civil case with two steps: one experimental and one statistical. First, we deliberately biased half of the subjects through exposure to pretrial publicity: subjects in the “control” group read an irrelevant article prior to trial, and subjects in the “treatment” group read an inadmissible article that portrayed the defendant very negatively. Second, we stimulated voir dire screening by asking subjects a series of questions, drawn directly from the U.S. Supreme Court’s guidance, about whether they could be impartial. We then removed from the data set subjects who conceded bias. Those who insisted they were fair and impartial—those who “pass” the magic question screen—are fit for jury duty. If jurors are able to self-diagnose accurately, then the effect of statistically removing those jurors who conceded bias would be to remove the biased verdicts.
Subjects then watched a thirty-two-minute medical malpractice trial video, which include all the key elements of the case, including a judge’s welcome, opening statements, direct and cross of two experts, closing statements, and realistic jury instructions from the judge. After watching the trial, subjects rendered individual judgments, responding “yes” or “no” to whether the plaintiff had proved by the greater weight of the evidence that the defendant committed medical negligence. Finally, subjects who found negligence also awarded noneconomic damages for pain and suffering.
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Later we ran additional experiments to test whether asking jurors to diagnose bias in
other
jurors (rather than themselves) might improve the accuracy of voir dire, using the same stimuli and analytic approach as in the experiments on self-diagnosis. The only difference is that we added an extra experimental variable, namely, after subjects were exposed to pretrial publicity, they were asked whether other jurors, if exposed to the same circumstances as the subject, would be biased. Specifically: “I understand that you will do your best to be fair and impartial, but do you think that there is a significant risk that other jurors, exposed to the article you read, would be prevented from impartially considering the evidence at trial?”; and (2) “Do you think those other jurors, exposed to the article you read, would base their verdict only on the evidence at trial?”
Our Results
Exposure to prejudicial pretrial publicity did, as expected, significantly bias jurors. It increased verdicts against the defendant and increasing damages for pain and suffering compared to jurors in the control condition.
This finding set the stage for our real inquiry, which looks back at the pre-trial voir dire screening questions. The vast majority of subjects denied bias and instead expressed a certainty that they would be able to impartially consider only the evidence presented at trial.
Notably, subjects were equally likely to admit bias (or not) regardless of whether they read irrelevant or prejudicial PTP, suggesting that the jurors responses were not tracking the prejudicial nature of the underlying exposure. Even worse, the responses did not track the future performance of the jurors themselves. Subjects who admitted that they were likely to be biased were in fact equally likely to impose liability after seeing the trial. The failure of the magic question colloquy was also apparent when examining the amount of pain and suffering awards, which increased dramatically from the control condition to the treatment condition, even after screening out those who confessed bias.
In our subsequent experiments testing the “other-diagnosis” colloquy, the mock jurors were very willing to concede that another person would be biased by the negative pretrial publicity they had read, while simultaneously insisting that they themselves, in contrast, would not be so affected. This result is promising to suggest that other-diagnosis overcomes some of the social-desirability biases, which degrade diagnosticity. Whereas self-diagnoses do not screen enough biased jurors, other-diagnoses seemingly screened too many, perhaps to the point of being unworkable for court dockets. As one part of the colloquy however, litigants and jurors may want to use this approach to improve the rate of disqualification.
Much more work, however, needs to be done to determine whether “other-diagnosis” actually solves the problem. Even in the unexposed control condition, subjects were also more likely to attribute possible bias to another person, and we were unable to confirm that it actually improved diagnosticity.
Discussion
Our study had several limitations, which we explore in the full article. Two can be emphasized here: First, our study did not test whether and to what extent jurors are biased from sources other than pretrial publicity, and whether they may be better able to self-diagnose those biases. But we have no reason to expect different outcomes in other domains. Second, it is possible that real jurors in real courthouses are somehow better able to diagnose their own biases (or they may be even more subject to social-desirability biases, which undermine diagnosticity).
The courts of appeal generally say that they will defer to trial court determinations as to whether a juror can be impartial, as long as those determinations are based on “substantial evidence.” This study has shown that the jurors’ self-diagnoses of bias do not provide any evidence regarding their actual impartiality.
We believe that trial courts should not rely upon such unreliable answers. One alternative may be to simply exclude jurors with prima facie evidence of potential bias – if they saw the prejudicial news item or have previously suffered this sort of injury or know a litigant, just disqualify them. Some judges now take the philosophy that “it is not whether you can be a good juror; the question is whether this is the right trial for you.”
In sum, our study undermines a longstanding and ubiquitous practice of the state and federal courts. Although further research is warranted, it is now fair to put the burden on those who rely upon this particular method of diagnosing bias to show that such reliance is reasonable. One can no longer simply assume that it is.
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The full paper can be found
here
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***
Christopher Robertson
,
JD, PhD is a professor and associate dean at
University of Arizona
, and co-founder of
Hugo Analytics
, a firm that provides scientific litigation insights. He has a 2019 book coming out:
Exposed: Why our Health Insurance is Incomplete and What Can be Done About It.
David Yokum
,
JD, PhD is Director of
The Policy Lab
at Brown University, where he leads a wide portfolio of work leveraging scientific methods to improve public policy and operations. He is also a co-founder of Hugo Analytics, and a leader of its
JuryMeter
project.
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Dinosaurs and Jury Trials: Adaptation or Extinction?
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By Hon. Ron Spears (Ret.)
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Fewer and fewer cases go to trial, yet trial by jury remains a key underpinning of our justice system.
Judge Justice began his presentation to the law school trial advocacy class with this "Carnack the Magnificent" bit: "The answer is, 'A Tyrannosaurus rex and a jury trial.' The question is, 'Name two scary things today's lawyers will probably never encounter.'"
The joke didn't seem to register. Was it because most of the students hadn't heard of Johnny Carson? Or
—
more likely
—
because pop culture and law school have portrayed the jury trial as the default way to resolve legal disputes? The Constitutional right to a jury trial has been a bulwark of liberty since the Magna Carta, right? Weren't jury trials and the appellate opinions they spawned the source of the very common law the students are studying?
Justice explained that jury trials
—
criminal and civil, state and federal
—
are increasingly rare. Jury trial did not suffer a dramatic K-T mass extinction event like scientists theorize for dinosaurs. The disappearance of jury trials more closely resembles the poor adaptation of a species to gradually changing environmental conditions.
While historical statistics are sparse, the decline in percentage of cases resolved by jury verdict over the past 40 years is probably a reduction from the 5-10 percent that previously went to trial to one percent or less. There are many theories about what's causing the decline and how to reverse it. Can and should the jury trial remain a centerpiece of our American legal system?
Jury reform
Judge Justice exhorted the students to be champions for the jury trial system, even if their last jury trial turns out to be a mock one in law school. Juries represent the American democratic value of direct citizen participation. Lawyers must be able and willing to represent clients in a jury trial and not equate it with entering a cave filled with dinosaurs. They must have confidence in the jury system and convince their clients to proceed to trial where appropriate.
Justice noted that settlement has always been the primary way of resolving cases. Human aversion to risk cannot be overstated as a way to compel compromise. While society at large has a stake in the jury-trial system, each case is an individual dispute. Attorneys know that their first responsibility is to their client, not to preservation of jury trials in the abstract.
But in the final cost-benefit analysis of "avoiding jury trials," it is fair to consider whether the negatives of jury trial are being overstated. Have clients, attorneys, and even some judges unfairly given up on juries?
Complaints about the jury trial system focus on the process and the product. Jurors cannot be blamed for the process complaints, which center on the time, expense, and delay inherent in the pleading, motions, and discovery pre-trial phase. Over the years, rule changes and better case management have empowered judges and lawyers to remedy abuses in those areas, while e-discovery and the proliferation of expert witnesses have posed new challenges.
But process is required to make a case ripe for resolution. Only after that are negotiation and settlement possible. In most jurisdictions, parties can usually schedule a jury trial soon if the case is ready and settlement has failed.
Lawyers and litigants have expressed generalized fear about the "quality" of the verdicts jurors reach. This reflects the difficulty of predicting and understanding jury outcomes.
State and federal courts and national and state bar associations have devoted considerable resources to improving the jury system. The ABA's American Jury Project identified 19 principles for modern jury trials. The Seventh Circuit American Jury Project, which was reported in 2008, evaluated some of the concepts recommended in the ABA project, including permitting juror questioning of witnesses, giving preliminary substantive jury instructions, allowing lawyers to make interim statements to the jury, and using questionnaires for jury selection.
Arizona, Colorado, Indiana, New York, and Wyoming have been leaders in jury reform efforts. For its part, Illinois now permits jury questions in civil cases under Supreme Court Rule 243. Our courts had previously allowed jury note taking, preliminary jury instructions, and giving jurors a copy of the jury instructions.
Don't be afraid to go to trial
Jury reform is usually over intense opposition by some members of the bench and bar. One key to enhancing the ability of jurors to improve their truth detection and decision making ability is increasing their engagement, communication, and understanding throughout the trial. That's what most reforms are designed to do, but opponents object to the judge and lawyers giving up "control" of the case to jurors. Efforts to let jurors educate themselves during trial and seek greater clarification of the law
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in other words, treating them with respect
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are opposed.
Ironically, many lawyers and judges who proclaim trust for the jury system seem to distrust jurors. It brings to mind the cartoon of the jury foreperson telling the judge, "What do you expect for $10 a day plus mileage?"
The questions for critics: What human system, even using "expert jurors" or judges or arbitrators, would reach better results than the current jury system? Is justice best served by secret proceedings in private settings? How would the common law develop without jury cases? How would litigants in future cases know what range of results is reasonable based upon similar facts?
Judge Justice concluded his presentation by underscoring that law students need trial advocacy skills even if few cases reach a jury. They need to learn how to gather essential information, identify key factual and legal issues, research and write, make persuasive arguments, master the tools of discovery, and create a compelling narrative on behalf of their client based on the facts and law. They need to develop negotiation skills.
In short, they need to feel confident in their ability to mediate, arbitrate, and try cases. Whether they are called trial lawyers, litigators, or collaborators, they are lawyers serving clients. They must be comfortable taking a case to trial or risk weakening their client's bargaining position.
Unlike T-Rex, jury trials can be saved from extinction
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but only if they have champions in the bench and bar.
This piece originally appeared in the Illinois Bar Journal and is republished with permission.
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Hon. Ron Spears (Ret.)
Circuit Court Judge, Fourth Judicial Circuit of Illinois
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Trial by Jury, a Hallowed American Right, Is Vanishing
By Benjamin Weiser
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The criminal trial ended more than two and a half years ago, but Judge Jesse M. Furman can still vividly recall the case. It stands out, not because of the defendant or the subject matter, but because of its rarity: In his four-plus years on the bench in Federal District Court in Manhattan, it was his only criminal jury trial.
He is far from alone.
Judge J. Paul Oetken, in half a decade on that bench, has had four criminal trials, including one that was repeated after a jury deadlocked. For Judge Lewis A. Kaplan, who has handled some of the nation’s most important terrorism cases, it has been 18 months since his last criminal jury trial.
“It’s a loss,” Judge Kaplan said, “because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.”
The national decline in trials, both criminal and civil, has been noted in law journal articles, bar association studies and judicial opinions. But recently, in the two federal courthouses in Manhattan and a third in White Plains (known collectively as the Southern District of New York), the vanishing of criminal jury trials has never seemed so pronounced.
The Southern District held only 50 criminal jury trials last year, the lowest since 2004, according to data provided by the court. The pace remains slow this year.
In 2005, records show, there were more than double the number of trials: 106. And decades ago, legal experts said, the numbers were much higher.
“It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested. Everything else is done behind closed doors.”
Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.
Julia L. Gatto, a federal public defender, recalled
the case of Oumar Issa
, a Malian arrested in Africa in a 2009 sting operation on charges of narco-terrorism conspiracy, which carried a mandatory minimum 20-year sentence, and conspiring to support a terrorist organization, which had no minimum.
Although Ms. Gatto and her client believed that elements of the case were weak and that there were strongly mitigating circumstances, Mr. Issa concluded that the risk of going to trial was too high. He pleaded guilty in 2012 to material support, with prosecutors dropping the other charge. He received 57 months in prison. “It was the only thing he could do,” Ms. Gatto said. “His hands were tied.”
In 1997, according to federal courts data nationwide, 3,200 of 63,000 federal defendants were convicted in jury trials; in 2015, there were only 1,650 jury convictions, out of 81,000 defendants.
Former Judge John Gleeson, who in March stepped down from the federal bench in Brooklyn to enter private practice, noted in a 2013 court opinion that 81 percent of federal convictions in 1980 were the product of guilty pleas; in one recent year, the figure was 97 percent.
Judge Gleeson wrote that because most pleas are negotiated before a prosecutor prepares a case for trial, the “thin presentation” of evidence needed for indictment “is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.”
“The entire system loses an edge,” he added, “and I have no doubt that the quality of justice in our courthouses has suffered as a result.”
While the decline in jury trials in federal court has been felt by judges, lawyers and defendants, it has also disrupted the rhythm of the courthouse ecosystem and those who depend on it.
Young lawyers typically become clerks for Southern District judges to gain valuable trial experience; now, some clerks depart without having worked a single trial.
Even the court’s stenographers, whose incomes depend partially on the number of transcript pages they produce, feel the impact.
“It’s been awful,” said Rebecca Forman, who said she transcribed her last criminal jury trial in November 2015. “I didn’t send my kids to camp this summer. I didn’t have the money.”
New York State Court data also shows a striking decline in felony jury trials. In 1984, there were over 4,000 jury verdicts; in 2015, there were fewer than half of that.
Preet Bharara, the United States attorney in Manhattan, speaking to a lawyers group in 2012, cited another effect of the decline: fewer Americans serving on juries. “When trials vanish, citizenship also suffers,” Mr. Bharara said, according to his prepared remarks.
Beyond the statistics, though, the decline in trials in the Southern District has become a frequent topic of discussion, even among judges themselves.
“We’d love to have more trials; most of us enjoy trials,” said Judge Alvin K. Hellerstein, who joined the bench in 1998.
In April, when Judge Shira A. Scheindlin resigned from the bench after more than two decades, she said the decrease in trials was one consideration for her departure. “Trials are way, way down,” she said. “The building’s quite dead.”
Judge P. Kevin Castel, who helped to organize the court’s 225th anniversary celebration in 2014, recalled taking a friend, Mary Noe, a legal studies professor at St. John’s University, to see an exhibit of courtroom illustrations documenting Southern District trial scenes of past decades. But as they reached the end, Professor Noe observed that the sketches of more recent defendants, like Bernard L. Madoff and the
would-be Times Square bomber Faisal Shahzad
showed them pleading guilty.
“I was like, what happened to the trials?” she recalled.
Judge Analisa Torres said she had felt the difference ever since joining the federal bench in 2013. Judge Torres, a former state court judge who handled about two dozen criminal trials a year in Manhattan and the Bronx, said she has since had just a few such trials. “It’s day and night,” she said.
On the state bench, she said, she spent her entire day in the courtroom but for the lunch hour. “Now, I am in chambers all day long.”
The hallowed jury trial is a right enshrined in the Constitution and immortalized in American culture. But these days, said Daniel C. Richman, a professor at Columbia Law School, “‘12 Angry Men’ is more a cultural concept than a regular happening.”
To be sure, federal judges are not exactly sitting on their hands. They maintain dockets filled with civil and criminal cases that wend their way through the process — even if most are resolved without a trial.
As for Judge Furman, he is still waiting for his second criminal jury trial since becoming a judge in 2012. He almost had one earlier this year, but a scheduling conflict with a civil trial meant he had to pass it to another judge.
Another criminal trial loomed this summer. Then it, too, disappeared from the calendar, as the defendant pleaded guilty.
It meant he would have more time to get other work done in chambers, Judge Furman recalled, and there was plenty of that to do.
“But there’s a tinge,” he added wistfully, “of what might have been, that we thought we had one, but it got away.”
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Another version of this article appeared in print on Aug. 8, 2016, Section A, Page 1 of the New York edition with the headline:
Jury Trials Vanish, and Justice Is Served Behind Closed Doors
. The piece that appears here was published the previous day, Aug. 7, 2016, and is reprinted with the generous permission of the author and the
New York Times
.
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A Testimonial & From a Recently Discharged Juror
I was recently appointed as a juror for a civil case, and served as the foreman, that lasted three days and was held in state court. This was my first time being summoned even though I have been a registered voter all of my life. I was surprised at the focus and attention paid to making our time as jurors appreciated as well as the clear instructions and process that would occur. I
was very happy to be a part of this civic duty and it left me with a positive perception of the civil justice system that I participated in. Were I a plaintiff or defendant I believe I would prefer a jury trial. I do not have any proposed changes to make to our jury system, other than some public relations to help people understand more about it. I am often dismayed at the impulse to avoid this part of our working republic. I found all the lawyers to be up to the tasks at hand, but the plaintiff brought a case without sufficient proof for us to find for them.
I would add that the other jurors I served with were a good representation of the community and it was my pleasure to meet them and share the experience with them; this alone has given me hope that even in the current daily political divisiveness we see in the news, the reality is that American citizens of all backgrounds are a fair and decent bunch.
Thanks for allowing me to share my thoughts,
Matt Hovey
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For more testimonials, including video interviews, click
here
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Look out for the January Newsletter!
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Tune in next month for more articles by our judicial and academic advisors and testimonials from jurors who have recently finished serving on a civil jury.
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Civil Jury Project, NYU School of Law
Wilf Hall, 139 MacDougal Street, Room 407, New York, NY 10012
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Stephen Susman
Executive Director
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Michael Pressman
Research Fellow
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Samuel Issacharoff
Faculty Director
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Michael Shammas
Research Fellow
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Mark Drummond
Judicial Director
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Kaitlin Villanueva
Admin. Assistant
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