July Newsletter of the Civil Jury Project

Civil Jury Project

Volume: 4 | Issue 7

July - 2019

Opening Statement

Dear Readers,

Welcome to the July edition of the Civil Jury Project’s monthly newsletter.

This issue of the newsletter features an article by Hon. Tanya Garrison and Hon. Ravi Sandill on the importance of promoting socio-economic diversity on juries. This is a topic that many of our Judicial Advisors have flagged as worthy of our sustained attention and research in the coming academic year.

A secondary theme of this issue is the subject of jury predictability. Here, we feature a debate between Hon. Gary Hastings, and Richard Gabriel and Gabriela Cedré, Jury Consultant Advisors to the Civil Jury Project .

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 .

Sincerely,

Stephen D. Susman

Upcoming Events

August 6th

Annual Conference of

Circuit Court Judges

Naples, FL

September 12th

Jury Improvement Lunch

Denver, CO

October 10th

Jury Improvement Lunch

Houston, TX

View All Events

Read Justice Kavanaugh's Opinion in Flowers v. Mississippi HERE

"Other than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process."

-Justice Kavanaugh

Promoting Diversity and Eliminating Economic Hardship from Jury Service through Supplemental Jury Pay

By Hon. Tanya Garrison, Judicial Advisor to the Civil Jury Project and Hon. Ravi Sandill, Judicial Advisor to the Civil Jury Project

In a recent edition of the Civil Jury Project Newsletter, Hon. Jim Jordan remarked about the inspiring nature of a jury. He noted that in many respects this comes from the variety of backgrounds that jurors bring to the courthouse. Wealthy or struggling, PhD or GED, all races, all religions, men and women, gay or straight, young or old: all are called upon to serve and share with people who may be very different from themselves.

Recognizing the importance of a representative jury with diverse backgrounds and life experiences, courts across the country must consider how to ensure that all people and all voices can find a place on a jury. This issue particularly arises when considering juror hardship strikes based on economic difficulties.

The stereotypical scenario is the single mother who earns a low wage on an hourly basis. While she may not lose her job because of her jury service, the fact that she is not earning a paycheck may mean the difference between paying the rent or default. The small amount she receives from the county for her service is almost always significantly less than she would earn for 8-10 hours on the job.

So, what does a trial judge do? We all have empathy for this situation. No one wants to be the reason that this juror cannot afford life’s necessities; however, excusing her (and others like her) means that these voices will not be present on a jury. And, these voices matter, especially when considering a litigant’s right to be tried by a jury of his/her peers. Further, it matters so that we as a judicial system do not create a de facto barrier to jury service.

The easy temptation is to excuse this juror, especially if extra jurors are available. But, this answer is not always the right answer. The fallout from taking this easy route is that working class Americans go unrepresented on juries, and they don’t have an opportunity to participate in one of the essential functions of citizenship in this country. To exacerbate the effects, this leads not only to disparity of jurors on an economic basis, but it also leads to race and gender disparity as more minorities and women hold these lower paying jobs.

So what is the answer? In Texas, we have a statutory answer. The Texas Government Code provides:

In a specific case, the presiding judge, with the agreement of the parties involved or their attorneys, may increase the daily amount of reimbursement for a person who reports for jury service in that case. The difference between the usual daily amount of reimbursement and the daily amount of reimbursement for a person who reports for jury service in a specific case shall be paid, in equal amounts, by the parties involved in the case.

Tex. Gov’t Code § 61.001 . How a judge can elicit an agreement of the parties remains an issue of personal style. But, for a trial lasting more than a 6 or 7 days, the parties usually understand that they are asking for a significant commitment from the court and the justice system, including the jurors and alternates. Moreover, the amounts in controversy in these large cases also justify this commitment from the parties. The parties are paying their attorneys significantly more to be in trial for this length of time, so it only stands to reason that they help compensate those citizens whose roles are as important as any other in the justice system.

In the 127 ^th District Court, the Court asks all cases over 36 hours of evidentiary time to agree to supplement juror pay. One such case took place last year. The Parties believed the trial would last six weeks to eight weeks. They readily agreed to supplement juror pay and to feed the jurors during the length of trial. Each party agreed to pay $55 per side. This took the supplement to $110, and with the county’s pay of $40 per day, the jurors were making $150 per day of service.

After the parties agreed to amount of the supplement, the Court authored an Agreed Order to Supplement Juror Pay . The venire panel was alerted of the supplement pay during voir dire so that the issue of economic hardships could be mitigated.

By increasing juror pay to over $100 a day, jury service no longer presents a hardship to most jurors struggling from paycheck to paycheck.

Then the question becomes what, if anything, can courts outside of Texas do to implement similar procedures. The question should be, absent a statutory prohibition, why can’t trial courts request such an agreement from the parties. While parties may be resistant to this type of innovation, that discomfort is minimal when weighed against the alternative – elimination of an entire class of citizenry from the jury service process. This is antithetical to purpose of the jury system and speaks against the ideal of our judicial system.

We have attached the Order used by Judge Sandill in this article, and we strongly encourage plagiarism. As modern jurists, we should all be thinking and attempting innovations that strive to diversify our juries. The benefits of this type of change not only eliminates economic hardships for jurors, but it also provides a more balanced jury and exposes other jurors to people in their community that may be, as Judge Jordan stated, “very different from themselves.” Strangers from all walks of life working together to solve a problem is a unique beauty of the American jury system. We all benefit when diversity is promoted, and we should all work to ensure the vast tapestry of American life is represented on our juries.

Hon. Tanya Garrison

Judge of the 157th District Court, Harris County, Texas

Hon. R.V. Sandill

Judge of the 127th District Court, Harris County, Texas.

In Memoriam

Today the Civil Jury Project remembers Judge Meenu Sasser, who was a Judicial Advisor to the Civil Jury Project. Judge Sasser was deeply committed to improving the jury system with her innovative practices—making jury service more accessible and less burdensome for ordinary people. Her dedication to improvement of jury service, the courts, and her legal community was unparalleled.

She will be sorely missed.

ARE JURIES UNPREDICTABLE?

By Hon. J. Gary Hastings (Ret.)

Hon. Fredericka Phillips

Harris County, TX 61st District

My short answer is no. What is unpredictable is accurate analysis by the lawyers and clients of the facts and the law and effective presentation of the case to the jury.

I spent 13 years as a trial lawyer, 8 years as a trial judge on the Los Angeles County Superior Court and 13 years as a Justice on the California Court of Appeal in Los Angeles between 1972 and 2006. Over that period of time I tried, presided over or reviewed hundreds of jury trials. After every jury trial as a lawyer I spoke to jurors about their experience and why they ruled the way they did. As a trial judge, I took every jury into my chambers after the trial, without the lawyers being present, and discussed the case, their experience and how they reached their verdict. As a Justice, I reviewed cases challenging whether substantial evidence supported the verdict. I have also served on two juries which resulted in verdicts. My conclusion is that most jurors try to do the best job possible with the information presented and without any express bias or prejudice. Jury verdicts usually reflect a common sense view of the facts as applied to the law provided to the jurors.

Probably the most surprising revelation that came to me in my 8 years as a trial judge was that many lawyers did not understand how their presentation of the case was being received by me or the jury. I’m not referring to many criminal cases where the facts and the law clearly demanded a particular outcome in my mind and the jurors so ruled. Prosecutors and public defenders are usually very experienced at analyzing and presenting their cases. It was in civil cases and criminal cases where a private defense attorney was retained by the defendant that the revelation occurred. In many cases tried before me I had serious questions about whether a case had been properly analyzed or about the tactics and strategy being employed by counsel. I recall oftentimes wondering to myself why counsel was introducing evidence or making an argument which appeared to go against the client’s interest. And more often than not it would not be reconciled by the end of the case. And jurors commented on this in post trial conversations, asking me why one or the other counsel would introduce certain evidence or make a particular argument which appeared to be against the client’s interest. I will share two cases, one criminal and one civil which demonstrate the problem.

I presided over a criminal jury trial charging a bookkeeper of a family pharmacy with embezzlement. Her counsel was privately retained. During the trial the prosecutor sought to establish that the defendant was the only one with access to certain books and bank accounts and who had the intent to embezzle from the pharmacy. The evidence was presented through the son of the owner who did not make a very good witness. His direct testimony revealed that he also had access to the same books and accounts. I recall writing down in my notes that a reasonable doubt may exist depending on how the defense presented its case. Defense counsel at no time ever addressed or brought up the issue of equal access by the son and made no argument during closing attempting to raise reasonable doubt based on that theory. The jury found the defendant guilty. New counsel was obtained by the defendant and a motion for new trial was made on the ground of ineffective assistance of counsel – specifically, that reasonable doubt existed given the son’s equal access. I granted a new trial and upon retrial the defendant was found not guilty. I attribute the different outcomes not to the unpredictability of the jurors but on the failure of the defendant’s original counsel in failing to adequately analyze the case.

The second case was a civil trial for breach of contract. The plaintiff, an expert in airport terminal maintenance, approached a major airline at Los Angeles International Airport when he heard that it was having financial overruns in terminal maintenance. He told the company that within two years he could save the company $2 million dollars per year in maintenance costs. If he failed, they pay him nothing. If he succeeded, they would pay him $15,000 and make him an “officer” for purposes of placing him on the company’s health plan and employee flight plan, which would last for five years. The company agreed and he did succeed. They paid him $15,000, placed him on their health plan and he and his “wife” began regularly using the flight perks. Within a year new management took over the airline. They immediately rescinded the deal and he sued. During pre trial motions it became clear that new management had developed a severe dislike of the plaintiff which apparently affected their analysis of the case. Two partners from a well known Los Angeles litigation firm tried the case on behalf of the airline and appeared to have joined in the dislike of the plaintiff. There really was no defense to the case because the officer who had negotiated the terms on behalf of the airline, and who had moved on to another airline, gave a video deposition which was played to the jury. The officer explained how the contract was formed, why it was such a great deal for the airline and how the terms provided to the plaintiff were minimal considering the savings obtained. The evidence went undisputed. In their case-in-chief, defense counsel called to the witness stand a local attorney who testified that the woman who was using the flight perks with plaintiff was actually not plaintiff’s wife but the estranged wife of the local attorney. Counsel for the plaintiff objected to the evidence. I must admit I was skeptical of the strategy but I had to allow the evidence, which remained undisputed. Defense counsel argued this was a breach of the contract by plaintiff because it placed an undue burden on the flight perks. The jury returned a verdict awarding the plaintiff damages for the lost health benefits and flight perks totaling in excess of $250,000, everything plaintiff’s counsel requested. Afterward, the jurors asked why I had not allowed them to award punitive damages. They were incensed by the tactics of the defense in claiming plaintiff had breached the contract by flying with his so-called “wife” given the spectacular results provided by plaintiff at minimal cost to the company. I explained that as a matter of law a breach of contract claim cannot support punitive damages. I later found out that plaintiff’s claim could have been settled for much less than the jury’s award. Did the outcome demonstrate the jurors were unpredictable? To the contrary, I believe the outcome of the case was entirely predictable given the uncontradicted testimony from the officer who negotiated the original contract on behalf of the defendant. I believe that the animosity between the plaintiff and new management created an inability on behalf of management to adequately analyze the case and the tactics by defense counsel further inflamed the situation.

These two cases don’t, by themselves, dispute a claim by some that jurors can be unpredictable. But they do demonstrate how the failings of clients and counsel can result in verdicts that may not be expected by the client or counsel. In my years of experience I have concluded that jurors are just regular people who try to do their best given the facts and the law. There is unpredictability in the jury system. But in my opinion it should not be attributed to the jurors. Rather, it should be attributed to the failure of counsel and the clients in adequately analyzing and presenting cases to the jurors.

Hon. Gary Hastings (Ret.)

Former Justice in the California Court of Appeal, Second District, Division 4. Faculty member for the National Institute of Trial Advocacy and Adjunct Professor at Southwestern Law School.

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New Advisor

Spotlight

Hon. Latosha Lewis Payne

Harris County, TX 55th District

RESPONSE: JURY TRIALS ARE UNPREDICTABLE IN PREDICTABLE WAYS.

By Richard Gabriel (Jury Consultant Advisor to the Civil Jury Project) and Gabriela Cedr é

“Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.”

- Judge Sonia Sotomayor

In a study of almost one thousand attorneys in 2016, conducted by the American Society of Trial Consultant Advisors and NYU Law School’s Civil Jury Project, uncertainty of jury decision making about damages, liability, and causation were three of the top six reasons given by lawyers about why they believe cases resolved without a jury trial. Mediators and trial judges also routinely caution parties about the unpredictability of juries when trying to negotiate (or pressure) a settlement in a given case.

But what are we really speaking about when we talk about trial predictability? Trial judges are not predictable regarding their rulings or their verdicts in a bench trial. Opposing parties are not predictable in their demands, their offers, or their decisions to settle or try cases. Arbitration decisions are not predictable. Sometimes, we tend to conflate predictability with familiarity. These days, with dwindling jury trials and increased use of mediation and arbitration, many attorneys are more familiar and comfortable with these forums where there is a common legal language.

In fact, jurors are no more unpredictable than judges or neutrals. Since all litigation involves human judgment, there are discreet cognitive components in a fact finder’s decision-making process, aside from evidence and law. And until we improve our skill in understanding these psychological components, we are not truly managing trial risk in our choices to settle or try cases. Understanding the qualitative elements that drive jury decisions make jury trials much more understandable, if not predictable.

So, what do we know about the research on legal decision making? Group decision making is more stable and more accurate than individual decision making. Larger groups (12 vs. 6 jurors) debate more vigorously, collectively recall more evidence from trial, and make more consistent and predictable decisions. Research has also shown that larger juries are also more likely to contain members of minority groups, more accurately recall trial testimony, spend more time deliberating, and reach fewer erroneous decisions. Judges, attorneys, and jurors all use the same process to evaluate cases—jurors are no more unpredictable than judges or attorneys as their decision-making patterns are more similar than they are different. Also, judges are (for the most part) unable to ignore inadmissible evidence when making decisions—a judges’ decision-making process is just as susceptible to the same biases as jurors’ are. This research confirms the wisdom of our forefathers in enacting the 6 ^th and 7 ^th Amendments to our Constitution. They knew that a group of citizens were more reliable, fair, and less prone to outside influence than a single arbiter.

Rather than thinking of jurors as unpredictable, it is more useful to try and understand the qualitative elements of jury (and judicial) decision making that we do not currently appreciate. And if you understand the components and mechanism of a jury’s decision-making process, you come to understand that yes, juries are unpredictable, but in very predictable ways.

Much of lawyers’ misunderstanding about juror “unpredictability” stems from the fact that lawyers and jurors think differently. Lawyers train intensively for years in methods to critically analyze the facts and law in a given case. They then can spend months, if not years steeped in the factual and legal minutiae of a case, drafting motions, researching case law, talking with experts, conducting discovery, poring over documents, and making legal arguments. The amount of time and exertion on these legal and factual issues often take an outsized role in the estimation by litigation counsel of what is important to a jury. This is why conducting jury research can be so eye opening for lawyers and their clients as it can pinpoint the extra-legal factors that will influence the way jurors perceive and interpret the evidence and issues in a case.

Despite rehabilitation efforts in jury selection and the stern admonition to “set aside” their past experiences or beliefs, jurors cannot help but use, as reference material, their past experience as a driver in a car accident case, a patient in a medical malpractice case, or an employee in a workplace discrimination case. Similarly, strong beliefs about doctors or employers are not so easy to set aside. This is an example of confirmation bias (which affects us all) where we search for and filter information which confirms what we already believe rather than keeping a truly open mind. Thorough and probing voir dire should be conducted to find out how , rather than whether or not a juror’s past experiences or beliefs will affect the way they listen to evidence. Additionally, research illustrates other factors that will make these “unpredictable” jurors more understandable. Authoritarian jurors are more likely to believe in retribution and punishment, thus vote guilty and seek to punish a defendant that is of lower social status. Similarly, jurors who believe in a “just world” are more likely to blame the victim of a crime, believing that the victim must have done something to deserve what happened to them. It is especially important in jury selection to pay attention to extraverted jurors as they are more likely to be selected as a foreperson, perceived as dominant by other jurors, and are more likely to be influential in deliberations.

Often, case presentations are structured around the litigant’s schedules rather than a jury’s comprehension needs. One of the elements that will make a jury’s verdict much more predictable is improving the clarity of each side’s case presentation. This is done by rigorously simplifying complex evidentiary and legal concepts, creating tutorials to give jurors context for the issues in a case, and creating compelling and evocative demonstrative exhibits to help jurors visualize the evidence. Asking for and allowing juror questions during the trial also helps litigants better understand how jurors are receiving the case, making their ultimate verdict much less unpredictable.

Rather than thinking of cases as sets of individual facts, all jurors seek to understand cases by putting them into a narrative structure. By better understanding the nature of how jurors take evidence and put it into a story format, attorneys can better design their witness examinations, opening statements, and closing arguments. Research on the availability heuristic tells us jurors will use what information comes easiest to mind. Thus, the more time, repetition, or emotional intensity that is placed on an issue in trial, the more jurors will think it is important. Knowing this will help attorneys better plan their case presentations, as well as direct and cross-examinations. In many cases, jurors are thrust into the world of building construction, doctors, scientists, engineers, and lawyers with little or no background knowledge. Norm theory tells us that jurors seek to understand the world they are asked to judge by seeking to establish the norm for that world. Thus, it is important for attorneys to provide context or background for jurors about the world they are about to judge. Similarly, research on hindsight bias [4] tells us that jurors will always use today’s information to judge a party’s past behavior or actions. This is obviously important for attorneys who are dealing with “standard of care” issues in medical malpractice cases, “duty to warn” issues in product liability cases, and almost all personal injury cases involving an accident. Jurors are always tracking whether an accident or injury was foreseeable or preventable at the time by using what they currently know in the courtroom, knowing the outcome. Though this is not the legal standard, this is the natural inclination of jurors and attorneys ignore this bias at their own peril.

Additionally, attorneys often overestimate the resume credibility of experts or the factual testimony of witnesses and underestimate the demeanor and perceived attitude of the witness. Knowing how jurors actually evaluate witnesses’ character and credibility will greatly help attorneys to assess how their fact and expert witnesses are likely to be perceived by jurors. Fundamental attribution error is another bias that explains how jurors overemphasize the personal characteristics of attorneys, witnesses, and parties when judging their behavior and decisions, while underemphasizing the external or situational factors that may influence those behaviors. For example, if a plaintiff or defendant makes a poor decision that is associated with an accident, that decision is more likely to be perceived as being a result of who that person is (e.g., “careless”, “arrogant”) rather than attributed to the circumstances of the accident. Research also tells us that jurors are more easily able to identify with an attractive defendant because they are perceived as having more likable qualities. Similarly, ingroup/outgroup research tells us that jurors more easily identify with someone they perceive to be a member of their own group, whether it be their race, religion, gender, social status, or sexual orientation. However, this identification can make a juror more sympathetic or more critical of the party or attorney in their group.

There are often issues outside of evidence that can strongly influence jurors. Without sensitivity and awareness of these issues, attorneys miss cues of behavior that can significantly impact the case. In a recent case involving a mother dying of a rare form of cancer she accused a doctor of failing to diagnose, she tearfully testified about not being around to see her young children grow up. During her cross-examination, the defense attorney in the case offered her water and questioned her with such compassion that jurors understood that the defense lawyer cared for this mother and her tragic situation, while still disputing her doctor client’s liability. In post-trial interviews, jurors offered how much they appreciated the attorney’s sensitivity, which influenced their defense verdict.

This highlights the importance of how a case is presented rather than just what is presented to a jury during a trial. Rather than thinking of the sole importance of evidence weight on a jury’s verdict, research supports that positive perceptions of an attorneys’ presentation of evidence and preparedness leads to more favorable outcomes for the attorneys, especially for prosecution and plaintiff attorneys. For attorneys, their credibility is greatly enhanced by helping jurors to understand the case rather than just trying to forcefully persuade them that they are right. The mere intention to help jurors understand creates a connection with a jury that helps counsel better understand which evidence and arguments are landing and which are falling flat.

There are always two cases in a jury trial: the case the attorney wants to try and the case the jury wants to hear. By better understanding the elements of jury decision making, attorneys can reduce the unpredictability factor, improve their case risk evaluation, and increase the clarity and persuasiveness of their cases.