June Newsletter of the Civil Jury Project

Civil Jury Project

Volume: 4 | Issue 6

June - 2019

Opening Statement

Dear Readers,

Welcome to the June edition of the Civil Jury Project’s monthly newsletter. Over the past week we have heard from a number of you—including Judicial, Academic, and Jury Consultant Advisers—with feedback on research projects we hope to undertake during the next academic year. We have been particularly struck by your interest and enthusiasm about projects related to identifying and addressing logistical impediments to jury service— including poor compensation, time-consuming (or costly) public transportation, and lack of care-taking support for jurors' dependents. It is essential that all American citizens are able to participate in the jury system. To that end we are committed to projects that encourage the inclusivity and diversity of this vital democratic institution.

This issue of the newsletter features articles on the importance of the jury system—both civil and criminal—by two of our Judicial Advisers: Judge David G. Campbell of the United States District Court for the District of Arizona and Judge Jack Zouhary of the United States District Court for the Northern District of Ohio. A third article offers an overview of a recent interview project the Civil Jury Project has undertaken to examine the efficacy of the jury innovations we advocate.

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

June 6th

Toledo Jury

Improvement Lunch

Toledo, OH

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

INSIDE THIS ISSUE

Ever wonder what former jurors have to say about trial innovations? Read about our recent study below!

Declining Jury Trials

By Hon. David G. Campbell, Judicial Adviser to the Civil Jury Project

During my first seven years as a district judge, I became concerned about the steadily decreasing number of jury trials in federal court. A primary reason seemed to be the time and expense of getting to trial – parties were usually exhausted before trial ever arrived. I assumed there must be some cases in my civil docket where the issues were well understood by both sides, there was little need for discovery or motion practice, and the parties just needed their day in court.

In 2010, I started offering an expedited trial alternative in every civil case other than prisoner pro se and record-only cases. I offered a jury trial within four months of the Rule 16 case management conference, with limited or no discovery and no motion practice. To ensure clients had a fair chance to evaluate this alternative, I required lawyers to develop two budgets, one for an expedited trial and the other for full litigation. I believed the cost difference alone would persuade some clients that an expedited trial was the best way to resolve their dispute. I required lawyers to certify in their Rule 26(f) reports that they had presented both budgets to their clients before a decision was made on the expedited trial alternative.

I offered these expedited jury trials in approximately 600 civil cases between 2010 and 2014, but never held one. In most cases, neither side expressed interest. In about 10 or 20% of the cases, one side requested an expedited trial but the other side would not agree. Three cases agreed to an expedited trial, but two later backed out and the third settled. After more than four years without success, I ended the experiment.

The Northern District of California had a similar experience about the same time. The district carefully developed and publicized an expedited trial program, only to close it down a few years later for lack of use.

I still believe that some portion of my 600 cases could have been resolved as fairly, more quickly, and much less expensively by a prompt jury trial. Why did none occur? I suspect there are several reasons.

First, many cases undoubtedly needed more discovery than my expedited track offered, and some likely needed a ruling on a particular legal issue. But I still believe there were cases in my sample of 600 where little or no discovery was needed and a factual dispute required resolution at trial.

Second, we have raised a generation of litigators who have little or no jury trial experience. Like anyone who has little personal experience with an event, such lawyers have difficulty feeling confident about the likely outcome of a jury trial. I suspect they consciously or unconsciously steer their clients away from such trials, choosing instead the model with which they are most comfortable – extensive discovery leading to settlements in cases that are not resolved by motion practice.

Third, I believe many clients have lost confidence in the jury system. There has been unfortunate publicity about occasional run-away juries, leading many to believe that juries are unreliable, or even dangerous, in important disputes.

During my 15 years as a trial judge, I have developed great confidence in juries. In more than 100 trials, jurors have virtually always gotten it right, even in complex cases. My discussions with jurors after trials make clear that they take their responsibilities very seriously and work to reach a collective and correct judgment.

How do we preserve jury trials? I don’t pretend to have the answer to this difficult question, but I have a few opinions.

We need to get young lawyers before juries. Trial experience will take the fear out of jury trials and equip them to advise clients more accurately. It also will make them more efficient in discovery – they will see more clearly what evidence truly matters. My court tries to help young lawyers get trial experience by asking them to appear as pro bono counsel in prisoner pro se cases that go to trial.

My expedited trial experiment failed even when cost and delay were greatly reduced, but I continue to believe that many cases settle short of trial because it is just too expensive to get there. How do we reduce cost and delay? The Advisory Committee on the Federal Rules of Civil Procedure has been trying. It has encouraged proportional discovery, limited unnecessary litigation over lost ESI, streamlined subpoena procedures, barred unnecessary discovery into draft expert reports and expert-lawyer communications, and eliminated wasteful document production practices. It currently is sponsoring a pilot program on vigorous initial disclosures in the District of Arizona and the Northern District of Illinois. But all of these efforts, at best, make only incremental differences.

We need a culture change. We must eliminate the accepted notion that a civil litigator must turn over every stone, seek every document, depose every witness, ask every question, and file every motion. I am convinced that much of our regularly-accepted litigation activity is entirely wasted – it never makes a difference in the outcome of the case. And yet it consumes thousands of hours and millions of dollars in every docket.

Criminal cases provide a striking contrast. Criminal lawyers effectively examine and cross-examine witnesses they have never deposed. They present their cases to juries with 15 or 20 key exhibits, rather than the hundreds (or sometime thousands) I see civil litigators wheel into my courtroom. True, there are dynamics at work in criminal cases that are not present in civil litigation – primarily the government’s robust disclosure obligations – but civil litigators could learn much from the efficiency of criminal trials.

Finally, we need to change public perceptions about juries. We must communicate more clearly that juries make rational and insightful decisions all the time, and certainly as often as judges, arbitrators, or mediators.

We should keep experimenting. We should not cling too tightly to accepted civil litigation norms. If jury trials vanish from our justice system, we will lose a fundamental principle of our democracy – that ordinary citizens can resolve important disputes, free from government control, bringing to bear the collective wisdom of our citizenry.

Hon. David G. Campbell

United States District Judge of the United States District Court for the District of Arizona

Innovations in Action: The Perspective of Recent Jurors

By Michael Pressman, Research Fellow to the Civil Jury Project

The Civil Jury Project recently interviewed the jurors who had served in a criminal case before Judge Thomas Marten in the District of Kansas. Though the case was a criminal one, Judge Marten used many of the trial innovations that the Civil Jury Project promotes, and we thus had the opportunity to hear the jurors’ thoughts about these innovative practices—as well as their thoughts about jury service more generally.

The jurors with whom we spoke had had experiences that were overwhelmingly positive, and they were strongly in favor of the various trial innovations employed by Judge Marten. The following provides a brief overview of what we learned in our interviews.

Attorneys’ opening statements before voir dire and to the entire venire

The jurors were big proponents of the judge’s practice of having the attorneys give their opening statements to the entire venire before voir dire. A common theme among the jurors was that this practice was liked because it enabled the jurors to have a better sense of what was going on in the case from the very start. The jurors appreciated being able to have this greater understanding during voir dire.

One juror, also a strong proponent of this practice, gave a different explanation for why he thought it should be continued to be used by this judge and also employed by other judges: According to this juror, having opening statements before voir dire “set the right tone for trial.” According to this juror, the attitude of the individuals in the venire was different during voir dire than it would have been had they not yet heard the attorneys’ opening statements. According to this juror, there was greater seriousness and focus among those in the venire than there otherwise would have been, and this, he said, was a good thing.

Note-taking by jurors

The jurors in this case were permitted by the judge to take notes, and the jurors spoke glowingly about how helpful this was for them. The jurors found not only that this practice helped them remember key details of testimony when they revisited their notes, but many of the jurors expressed the view that it helped keep them alert and engaged throughout the trial. One juror explained that he thought note-taking was particularly valuable in cases (such as this one) that are quite long. In particular, he said that when a case spans weekends, it is especially useful to have one’s notes on Monday mornings to help one remember what had occurred in the previous week and where the trial had left off. According to this juror, being able to refresh his memory on Monday mornings regarding what he had heard the previous week not only improved his understanding of what had occurred so far in trial, but it also improved his focus going forward.

Other things the jurors liked

A common theme emanating from the conversations with the jurors was that they greatly appreciated the judge’s strong effort to keep the trial moving along. The jurors felt that the judge handled the trial “extremely efficiently” and that “the pace was good.” The jurors not only appreciated this because they felt that their time was not wasted, but the jurors expressed that they also appreciated this because they felt that their time was being respected by the judge, and, thus, that they were being respected by the judge. Of the numerous things that the jurors liked about their experience, their praise for the judge’s efficiency was among the most oft-cited.

Jurors also were quick to express that they felt honored and privileged to be a part of the judicial process, and they spoke with great reverence for the system. Even a juror who was an alternate expressed this sentiment. As for what part of the experience the jurors enjoyed most, the answer that most jurors gave was that deliberation was the most memorable and gratifying part of the experience. One juror stated that she “enjoyed participating in deliberation because of the different perspectives jurors brought to the discussion.” Another juror, referring in particular to deliberation but also to the trial more broadly, expressed that what she especially enjoyed was the camaraderie among her and her fellow jurors. In a similar vein, another juror noted that she very much liked how it seemed to her that the jury included a representative sample of the population in the district. She thought that this made for an experience that was “both very interesting and nice to be a part of.” This juror also liked the fact that the jury seemed to be a representative sample of the population because she thought it made things fair for the defendant.

Things that the jurors did not like and ideas for improvement

The sentiments expressed by the jurors about their experience were overwhelmingly positive, but there were a few things that the jurors disliked. A few jurors had to drive very long distances to get from their homes to the courthouse, and they found this to be burdensome. (These jurors were particularly appreciative of the judge handling the trial as efficiently as he did.) Two jurors also reported feeling a “very heavy weight on their shoulders” throughout the trial because of the knowledge that they, through their decisions as jurors, were controlling someone else’s future—namely that of the defendant. One of these two jurors reported frequently having nightmares because she was worrying about whether or not she would make the right decisions.

This juror who had had nightmares had an idea for something that could have been done to help alleviate the anxiety: She said that she would have liked to be able to discuss the case with her fellow jurors throughout the trial (even if they were not allowed to form opinions), and she would have liked this because she thought it would have eased the feelings of intensity and anxiety that she experienced during the trial. Interestingly, the practice of allowing jurors to engage in pre-deliberation discussions with each other about the evidence is one of the innovations that the Civil Jury Project has been promoting, but the possible benefit of this practice that this juror mentioned is not one that we had considered. Indeed this is another reason for judges to consider allowing jurors to engage in pre-deliberation discussions about evidence.

* * * *

We can all learn from what recently discharged jurors say about what they liked and disliked about their experiences in trials—just as we can all learn from the practices of innovative judges like Judge Marten. It’s encouraging to hear about positive experiences in the courtroom, and especially when the innovations we promote are contributing to these positive experiences. We hope that more judges across the country will explore the possibility of implementing innovative practices in their courtrooms.

New Advisor

Spotlight

Hon. Jaclanel McFarland

Harris County, TX 133rd District

Hon. Beau Miller

Harris County, TX 190th District

Renewed Faith in the Jury System

By Hon. Jack Zouhary, Judicial Adviser to the Civil Jury Project

I recently completed a seven-week criminal jury trial in Dallas, Texas. The experience renewed my faith in the jury system. Here are a few details.

We sent a jury questionnaire ahead of trial allowing us to excuse jurors who had obvious conflicts and avoiding an unnecessary trip to the courthouse. Due to the large number of defendants -- nine, each with two lawyers -- and four government lawyers -- I decided (for the first time ever) to preclude direct questioning by the lawyers. Lawyers did have input into the questionnaire, and did e-mail me during voir dire requesting I ask follow-up questions. The process worked well and we had a jury by that afternoon. We used the next morning to complete pretrial rulings and followed with opening statements.

I often use a clock for trial -- giving both sides so many hours -- with some wiggle room for good cause to extend the time. Given the number of parties to this trial, I felt uncomfortable using a clock and, instead, used my powers of persuasion to keep things moving. I reminded counsel that one of my primary obligations was to make sure that the jury experience was a favorable one, which in turn meant they should be using visuals during questioning and arguments in order to assist the jury in what was a complicated white-collar case -- fraud, bribes, kickbacks, and money laundering in the healthcare field.

On the first day of the trial we lost one of two alternate jurors. I held by breath and was pleased that we were able to finish the trial with the one remaining alternate. I advised counsel it was my practice not to identify the alternate at the outset, but rather to observe the jury during the trial and excuse the juror who was less attentive than the others or, worse, dozing off during critical times. Week after week, I observed the jury and was pleasantly surprised that by the end of the trial there was not a single juror we could identify as the “sleepy” alternate. But one juror was unable to remain for deliberations (which as it turned out spanned several days) because of a work commitment, so he became the alternate.

As with most trials, some jurors took many notes and others took very few. However, they were very attentive throughout and bonded together, not unusual for a long trial. The liaison between me and the jury was a CSO (court security officer) who was so liked by the jurors for his kindness and courtesies that they insisted on sending an appreciation letter to his supervisor. The jury also thanked me for making them feel comfortable from the outset and for other considerations (“you treated us with respect and compassion”) throughout the trial. I would allow them to help decide what time we start each day, and I would ask them if we could work late some days in order to complete the exam of a witness. By the end of the trial, the jurors were ready to deliberate -- even showing signs of frustration when closing arguments, in their view, took too long.

I spoke to the foreperson after the verdict. I asked how he was selected. They decided to each write down the name of the juror they wished to serve as foreperson. This was a secret ballot. It turns out he had six votes which was more than anyone else -- no one else coming close. He assured the jurors that each of them would have the opportunity to speak their mind -- “no voice bigger than another” and an “equal vote.” They methodically worked through the jury verdict forms, which cross-referenced the jury instructions. They paid attention to details, as reflected in their several questions. In the end, seven defendants were found guilty, one not guilty, and one was a hung verdict. They clearly met the challenge of treating each defendant separately in arriving at their verdicts.

What did they like or not like about the experience? Overall they felt it was one of the “best experiences” they ever had. While it was not necessarily happy or fun, it was a “feel good” experience. It was hard work -- “taxing and sometimes emotional” -- made even harder by being away from their regular jobs -- and an inability to communicate with family or friends about the trial. They also echoed a common juror complaint -- the lawyers repeated way too often. They appreciated the lawyer who got to the point in a clear and concise manner and sat down. They also appreciated good visuals.

To my surprise, only one lawyer during closing effectively utilized the verdict forms. He displayed the relevant page and told the jury how they should answer the question. In my experience, this is absolutely essential to a good closing argument. A lawyer who fails to take advantage of instructions given to the jury before closing arguments is making a big mistake. That is because the jurors often use the verdict forms and the jury instructions hand-in-hand as they march through the necessary questions that need to be answered. The lawyer who fails to make the juror’s job easier is failing to effectively persuade.

Another helpful tool I suggested, given the many witnesses (40), was that counsel provide a photograph and name of the witnesses, listed in the order they testified. Jurors found this helpful in their discussions. We also had the IT Department place a larger screen in the jury room; when the jury reviewed the exhibits electronically, they could easily be seen. They also had a hard copy of the exhibits and those were also used by certain jurors to facilitate discussions.

It takes a team to host a jury trial. In this case, everyone – from the court reporter, law clerk, CSO and deputy clerk -- was an integral part of the courthouse effort to make this jury appreciate the service they were performing while sacrificing seven weeks from their jobs and families. My faith in the jury system was reaffirmed once again. And my message is that judges and lawyers, both, need to make every effort to assist a jury not only to understand the importance of their service, but to make their service as pleasant an experience as possible. Juror questionnaires completed following most of my jury trials are nearly unanimous in indicating that the experience was better than they expected. I could not be prouder of this last jury and the efforts they made to follow the law and apply the facts. I like to think our forefathers, who insisted that a jury trial was important enough to be included in both the Declaration of Independence and the Constitution, would have been equally proud of their effort.

Hon. Jack Zouhary

United States District Judge of the Northern District of Ohio

Look out for the July Newsletter!

Tune in next month for an article by two Judicial Advisers on the importance of promoting jury diversity and reducing economic hardship caused by jury service.