"For everything there is a season..."
Ecclesiastes 3:1 (RSV)
Dear Colleagues,
Changes are afoot at the Civil Jury Project. In short, as the country opens up, we will be doing less research and writing, but more outreach and speaking.
Our first change can be seen in the "Upcoming Events" column to your right. At the request of one of our Judicial Advisors, Judge Susan Cobb, I presented a virtual program in June on jury trial innovations to an education conference for judges in Connecticut. This has led to our first in-person presentation scheduled for this month for the Connecticut Bar Association.
Please let us know if you would like a presentation on jury innovations or for us to help organize a jury improvement lunch. We hope to do more of these events.
The next change taking place at the Project is we bid farewell to Michael Pressman, our Research Fellow, and wish him our very best as he transitions to private practice. Michael has been with us for three years. Since we want to restart our jury improvement lunches, I asked him to write about his experience with those lunches and what we learned from them.
In our April issue, I penned a piece entitled, Marshall McLuhan, Remote Jury Selection and Voting in America, which explored the possible effects of bringing the courthouse into jurors' homes through remote jury selection. In our second piece, I address this from the advocates' perspective and (1) how the medium (remote advocacy through the computer) affects the message, (2) what message is sent when that medium is used poorly and (3) how advocates can correct that.
Due to our hope that we will be doing more outreach, our next change is that we will be moving to a quarterly newsletter. Our next newsletter will be coming out in January of 2022 and we hope by that time to have had many opportunities to present programs and report back to you on the status of jury innovations across the country. We would welcome articles from you for this January 2022 issue.
We end this issue with a piece that brings together many resources for addressing the issue of delivering justice during a pandemic and which also honors Steve Susman, who set us on this path. We thank Sofia Adrogué and the Hon. Caroline Baker (ret.), one of our Judicial Advisors Emeritus, for this contribution.
I will end this with some good news from our judicial neighbors to our north. In our July newsletter we printed Jury Duty Is Not a Duty to Suffer by Mark Farrant and Tina Daenzer of the Canadian Juries Commission. Mark reported recently that the Government of Canada and Department of Justice have agreed to support the British Columbia Jury Support Pilot. The press release can be found here. We hope to follow this effort which supports the most precious resource for jury systems throughout the world: the jurors.
In closing, we wish you a happy and healthy 2021 holiday season and please let us know of opportunities in your area for us to reach out and present.
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Sincerely,
Hon. Mark A. Drummond (ret.),
Executive/Judicial Director
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September 23, 2021
3:00 to 5:00 p.m. ET
Connecticut Bar Association
In-person and remote
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The Civil Jury Project's Jury Improvement Lunches: A Look Back
By Michael Pressman
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Much of our work, here at the Civil Jury Project, over the past year and a half has been on issues pertaining to the functioning of courts during the pandemic (be it in person or remotely). We take a moment now, in this piece, however, to take a look back at some of our prior, pre-pandemic, work exploring and pursuing jury innovations--and improvements of jury trials more generally. In particular, we take a look back at one way in which we pursued these goals: conducting Jury Improvement Lunches. Our hope is that, when we emerge from the pandemic, events like this will return. This piece takes a look back at our Jury Improvement lunches--first explaining what they were and what they sought to accomplish, and then illustrating this by describing in depth what occurred at one particularly notable Jury Improvement Lunch that we conducted.
I. Jury Improvement Lunches
One of the projects that the Civil Jury Project engaged in before the pandemic was the organization of Jury Improvement Lunches around the country (along with the help of judges and local bar organizations). These lunches were attended by trial lawyers, state and federal judges, and former jurors. The programs would consist of a panel of jurors (and sometimes judges) discussing their experiences and ideas for how jury trials can be improved. We would get jurors to attend and participate by asking the judges who preside over civil jury trials to distribute a letter to jurors explaining that the lunch was being held to honor them and to learn from them about how to improve the jury system. Judges and jurors would attend as our guests, and the trial lawyers, who would get CLE credit, would pay for their own lunches. Local firms covered any expenses not covered by the attendees and were recognized as sponsors.
We have now held over 38 Jury Improvement Lunches across the country (starting in 2016 and going up until early March 2020, right before the pandemic shut the country down), and there have been some cities where we have held more than one. In chronological order, they were in: Houston, Houston, Dallas, Houston, Corpus Christi, Houston, Dallas, Seattle, Boston, Kansas City, Denver, Baltimore, Cleveland, Columbus, Dallas, Houston, Seattle, Las Vegas, Oklahoma City, Miami, Fort Hall (Idaho), Los Angeles, Tucson, New York City, Boise, Fort Lauderdale, West Palm Beach, Oakland, Des Moines, Chicago, Salt Lake City, Toledo, Denver, Houston, El Paso, Wichita, Kansas City, and San Antonio. (I personally attended 12 of the last 15 lunches.) All of our lunches were videotaped, and they can be found and watched on our website here.
The purpose of these lunches was to learn from each other’s experiences and to discuss possible ways in which jury trials can be improved. In addition, a key topic of the lunches was to explore the participants’ perspectives about the various trial innovations that we have been exploring and championing here at the Civil Jury Project. We wanted to learn first-hand from jurors and judges what they thought about these innovations. But the goal of the lunches was not limited to exploring these innovations; the goal was to explore all possible thoughts and ideas for ways in which to improve jury trials--drawing on the experiences of all panelists and audience members. Accordingly, the Jury Improvement Lunches were collaborative sessions.
Also of note is that, after almost every lunch, we would conduct additional one-on-one interviews with any of the juror-panelists who were willing to be interviewed, and these interviews can be watched on our website here as well. These interviews gave us the opportunity to hear more from the jurors about their experiences and their perspectives on jury service. This one-on-one setting often enabled jurors to go into greater depth about their experiences, and these interviews often provided particularly valuable, insightful, and interesting comments. In addition to these interviews being informative, it was also often riveting and touching to hear what many of the jurors had to say about their experiences with jury service.
In what follows, we provide an account of one particularly unique lunch that we put on in Wichita, Kansas, on December 10, 2019.
II. The Wichita Jury Improvement Lunch (December 10, 2019)
A. Introduction
As we have gone around the country talking about the innovative trial practices that we champion, we frequently have been asked about whether there is empirical evidence that the innovations work. It’s hard to get this empirical evidence, however. The main source of such evidence would be the testimonials of those involved in trials that employ these innovations (e.g., the jurors and the attorneys), but it’s difficult to find a trial where jurors and attorneys are willing to talk about the trial at a point when it’s still very fresh in their memories. Back in December 2019, we finally found such a trial; it was a three-week civil jury trial that took place in October and November 2019 in the District of Kansas.
In this trial, Judge Thomas Marten (Senior U.S. District Judge, U.S. District Court for the District of Kansas, now retired and Judicial Advisor Emeritus), implemented many of the trial innovations that we, at the CJP, have been championing. There were eight panelists for the discussion: Four were jurors in the case and four were attorneys in the case (two who represented the plaintiff and the other two who each, respectively, represented one of the multiple defendants in the case). The fact that the discussion involved jurors and attorneys from the same case made the discussion particularly fruitful. The recency of the trial also meant that the case was fresh in the panelists’ minds. Additionally, the substantial length of the trial made for more robust usage of—and examination of the effects of—the many innovative practices that Judge Marten employed.
This unique program provided us with empirical evidence regarding how well the trial innovations that we have been promoting work. The discussion here was particularly fruitful because we simultaneously were able to gain insights about the innovations—and indeed about the same specific applications of them in this case—from the perspective of the attorneys and jurors. The following will summarize the key points that arose out of the panel discussion regarding the trial innovations that Judge Marten employed. First, however, we provide both a brief bit of background about the case itself, and also a list of the innovations that Judge Marten employed in the case.
The CJP, once again, extends its sincere thanks to all of those who helped to make this event possible: Judge Marten himself, Judge Marten’s clerks (Kristen Wheeler and Brian Wood), the attorneys who sat on the panel (Corey Neller, Richard Olmstead, LeAnne Burnett, and Brian Madden), the jurors who sat on the panel (Debra Preheim, Zoe Currie, Diana Miskiewicz, and John Torline), the organizational sponsors and law-firm hosts of the event, and the audio-visual support team. A video of the lunch can be seen here: https://civiljuryproject.law.nyu.edu/12-10-19-wichita-jury-improvement-lunch/ We hope that readers will be able to learn from these insights.
B. The Wichita Jury Improvement Lunch
The following provides a bit of background about the trial:
The plaintiff, an interstate natural gas transportation utility, which stored gas in a depleted field in Kansas, alleged that defendant drillers created an intentional nuisance which damaged the field. In addition to the nuisance claim against the producers, the plaintiff also sued various interest owners in the neighboring wells for unjust enrichment. The defendants argued that they were not aware they were producing migrated storage gas, and in any event were entitled to produce it. Migration of gas from the field, which began in 1995, spawned several other lawsuits at the state and federal level, including a condemnation action, and multiple appeals. In resolving issues of intent and reasonableness, the jury was required to address both complicated scientific evidence and the extensive legal background of the case. The trial lasted seventeen days, after which the jury deliberated for a little over an hour before returning a defense verdict.
During the trial, Judge Marten employed the following trial innovations:
1. Jurors being allowed to submit questions for witnesses during trial
2. Complete opening statements before voir dire
3. Providing each member of the jury complete written instructions and a verdict form at the very beginning of trial
4. Disallowing sidebars
5. Juror discussion of evidence prior to deliberation
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Included in what follows are some of the highlights of—and notable points arising out of—the discussion. These notes are organized by innovation.
1. Jurors being allowed to submit questions for witnesses during trial
Question: Were any jurors uncomfortable if other jurors were asking questions and they weren’t?
Foreman’s answer: Since we were allowed to discuss the evidence before deliberation, most of the questions actually came from us as a group during such discussions rather than from any single juror in particular.
Question: Did you, the jurors, like this innovation?
Juror’s answer: Absolutely. We loved it.
Question: Was it a waste of time?
Juror’s answer: Absolutely not.
Juror: This practice prevented confusion from snowballing. Because if one gets lost, then one would remain lost going forward. Being able to ask questions prevented this.
A common objection to this innovation from attorneys: “I don’t want to turn over my case to the jurors.”
Attorney: It was helpful to be able to have jurors ask questions, because my question is always about what the jury is thinking. And this helped answer that question of mine. It enabled us to go back and clear up certain things so that any confusion that existed didn’t snowball.
Also: There were a number of questions in the first few days, but then there were many fewer questions after those first few days.
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Question: Did the questions suggest who was ahead?
Attorney’s answer: No, they did not.
Attorney: There weren’t very many questions. So it wasn’t like the trial was being taken over by the jurors.
A common objection to this practice: that it lengthens the trial.
Question: Did this practice lengthen the trial?
Attorney’s answer: No. There weren’t all that many questions. And, it probably prevented a lot of repetition because we were able to know that the jurors understood certain things. So we were able to avoid some repetition on the attorneys’ parts.
Attorney: When we saw from the questions that difficult concepts were being understood, we were able to avoid making certain points over and over again.
Question: Were any of the jurors’ questions improper?
Attorney’s answer: No, there were no objections made to the jurors’ questions.
Question: If your question was not answered, how did that make you feel as a juror?
Juror’s answer: None of the questions were unanswered.
Question: Did your ability to participate make you feel more invested in the case and stay more awake and pay better attention?
Juror’s answer: Yes. Absolutely.
Juror: This practice made deliberation go more quickly because we understood things better.
2. Complete opening statements before voir dire
Judge Marten’s rationale for this practice: It makes for better jury selection. We can better find out jurors’ biases.
A possible objection to this practice: An attorney being “penalized” for making a better opening statement, because the jurors who are sympathetic to that party’s case might get identified and then struck peremptorily.
Attorney: This was my favorite innovation in this trial. This prevents you from having to try your case during voir dire. And this streamlines things and prevents there from being an all-day voir dire. Thus, it saves time.
A different attorney: I found this practice frustrating because there were so many people and, thus, I couldn’t make eye contact with, and connect with, everyone in the room.
Juror: Opening statements before voir dire made me realize from the very start how serious of a responsibility jury service was. This made me take things more seriously from the very start. I really wanted to make sure I got things right. And hearing opening statements from the beginning made me realize that sooner than I otherwise would have.
Attorney: I think this practice also made the potential jurors more relaxed.
Attorney: A few jurors capitalized on this practice to help themselves say things to avoid getting selected for the jury.
Attorney: This practice made voir dire much more streamlined and much faster than it otherwise would have been.
3. Jurors getting the complete jury instructions at the beginning of the trial
Judge Marten: My practice is to hold the charge conference before the trial begins. Before the evidence starts, I give each juror a copy of the instructions and verdict form and read them to the jury. At the end of the evidence, I had to modify the verdict form and replace 3 or 4 instructions with new ones. I simply hand the jury the new items and ask them to insert these in their notebooks in lieu of what they replace. I then only read the new instructions and verdict form.
Juror: This was very helpful. I would frequently read back through the instructions.
Common objection to this practice is from judges: Against taking the time to get the instructions correct and squared away from the beginning if the case might settle or if some causes of action might be dropped or if some parties might drop out. Also because the judge often learns more about the case during trial.
Attorney: The charge conference actually took a bit less time than it would have taken if it were at the end.
Attorney: The charge conference was more effective in the beginning.
Question: Did having the instructions during the trial at all interfere with your focusing on the trial? And did the ability to take notes on your copy of the charge and verdict form interfere at all either?
Juror’s answer: No. Both of these practices helped us focus and neither one interfered with our focus.
Juror: I didn’t take all that many notes anyway. I didn’t find it distracting. If anything, the note-taking helped me focus a bit more.
Question: Did jurors having the instructions early on make the closing arguments easier to make?
Attorney’s answer: Yes. This enabled me to be more focused in closing. Because the jurors had access to the instructions.
Juror: If someone brought up something that pertained to words in the instruction, we often would indeed flip back to the instruction and read it.
4. Judge Marten not allowing sidebars
Attorney: This sped up the trial quite a bit.
Question: Was this unfair?
Attorney’s answer: I don’t think it was unfair. There were opportunities to tackle issues outside of the presence of the jury at other times—instead of using sidebars.
Question for Judge Marten: How does the decision to not have sidebars affect the way you handle trial?
Judge Marten: There are very few things that can’t be addressed beforehand, instead of using a sidebar. And I don’t want to waste the jurors’ time. They are the only ones who are not here by choice, and we need to keep things flowing and avoid wasting their time. I don’t think that it has a substantive impact on trial other than speeding it up.
Attorney: The lack of sidebars was something that the jurors said they liked.
5. Juror discussion of evidence before deliberation
Juror: It made deliberation go more quickly because we understood things better.
Jurors: We liked this practice.
Juror: Not much time was needed for these pre-deliberation discussions. It was just about little tweaks here and there before the next witness session.
Something that people are fearful about is that the jurors will not have heard all the evidence and that the jurors will side with what they hear first (i.e., the plaintiff’s case).
Defense attorney: I was worried about this innovation. I was worried that the jurors would make up their mind in favor of the plaintiff and then not change their minds.
Defense attorney: But we won the case. So I guess that didn’t happen after all.
Defense attorney: This did significantly speed up deliberation. Also, this practice keeps the jurors engaged throughout.
Defense attorney: Despite my initial hesitance about this innovation, I am, on the whole, in favor of it.
6. General comment
Attorney:
All of the innovations contributed to helping the jurors stay more engaged. And this is a very important thing.
Also, all of the innovations, together, made it feel as though all of the attorneys in the case (regardless of which side they represented) were on a team working toward the goal of having a successful trial and toward the goal of having a jury that was understanding things as well as possible. Despite it being an adversarial process, the use of the innovations made it feel as though we were also collaborating toward a shared goal.
7. Outlook
We can all learn from what these jurors and attorneys on this recent trial said about their experience with the innovations that Judge Marten employed—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.
* * *
The Jury Improvement Lunches that we conducted before the pandemic were great opportunities
for jurors, judges, and attorneys (and us at the Civil Jury Project) to all learn from each other’s different experiences with--and perspectives about--the jury system. They offered a unique opportunity for dialogue among these groups and this dialogue was an important step in collaborating to improve jury trials. We hope that this type of collaboration will resume when we emerge from the pandemic--be it in the form of the lunches we conduct or be it in presentations to the bench and bar.
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Michael Pressman, Research Fellow at the Civil Jury Project, holds a B.A. and M.A. in philosophy from Stanford University, a J.D. from Stanford Law School, and a Ph.D. in philosophy from the University of Southern California.
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Marshall McLuhan and Remote Advocacy
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By Hon. Mark A. Drummond (ret.), Executive/Judicial Director of the Civil Jury Project
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I first heard of the communication theorist, Marshall McLuhan, while watching the movie Annie Hall (1977) several decades ago. In that now famous scene, Woody Allen’s character is irritated by a man standing behind him in line to see a movie. The man is droning on and on to his companion about diverse topics ranging from Federico Fellini to Marshall McLuhan.
The scene climaxes when the man behind Allen starts talking about what Marshall McLuhan “meant.” Allen “breaks the fourth wall,” talks directly to the camera, then pulls Marshall McLuhan from behind a movie poster who proceeds to tell the man that he does not know what he is talking about. Allen then deadpans to the camera, “Boy, if life were only like this.”
Scholars have long debated what McLuhan “meant” by his phrase “The Medium is the Message.” For the definition I will turn to Mark Federman, the former chief strategist for the McLuhan Program in Culture and Technology at the University of Toronto who writes, “McLuhan defines medium for us as well. Right at the beginning of Understanding Media, he tells us that a medium is ‘any extension of ourselves.’ Classically, he suggests that a hammer extends our arm and that the wheel extends our legs and feet. Each enables us to do more than our bodies could do on their own.” Similarly, remote advocacy has resulted in our computers becoming the “extension of ourselves” into the remote courtrooms.
The first two paragraphs in this article appear in a piece I titled, Marshall McLuhan, Remote Jury Selection and Voting in America. That piece dealt with my thoughts on the possible effects, over a very long period of time, of “extending” the courthouse into people’s homes and workplaces through remote trials. Much of McLuhan’s work focused on the long-range effects of using various mediums to convey the message. Let’s say the message is about a violent crime. According to McLuhan, whether that message is delivered in person, read in a newspaper, heard on the radio, or shown on television matters.
My focus here is on the short range and (1) how the medium (remote advocacy through the computer) affects our message, (2) what message is sent when that medium is used poorly and (3) how we can correct that.
For that, I am going to turn to another expert, Carol Sowers, who spent 30 years of her life looking into a camera almost every day as a television reporter, producer and anchor. Since leaving the anchor’s desk she has trained attorneys around the world on communication skills. Since the pandemic struck, we have jointly trained over 100 attorneys in two-hour coaching sessions for the National Institute for Trial Advocacy (NITA). Here is what I have learned from Carol and that training.
Smile for the Camera
Problem: Not looking at the camera
Message: “I know I am talking to you, but I can’t find you!”
Fixes: Talk to the Camera, Listen to the Screen, Hide Self-View and use sticky notes
We are used to looking at people’s faces when we talk to them. We tend to do the same thing when we see their face on the computer screen. As odd as this sounds their face is not “them.” “They” are really that quarter of an inch dot next to the small green light at the top of your screen. Only when you are focused on that green dot are you “looking them in the eye” and communicating.
One fix to focus on the camera is to take two sticky notes, draw arrows going in on each and put them on each side of the camera. One person told us that she had stuck “googly eyes” on either side of her camera to remind her to look at her listeners.
Once you have looked at your setup on camera, hide your “self-view.” Studies reveal that people spend 80% of the time looking at their own face on the screen! This totally defeats the feedback loop we usually depend on when talking with people.
When we are in-person we are tuned into the listener’s facial expressions. Are they nodding in agreement? Do they have a quizzical look on their face? Should I ask if I need to clarify? Great communicators pick up on these cues and adjust accordingly. You cannot do that if you are looking at your own face most of the time.
Another fix is to arrange the tiles so that the person you want to talk to, whether it be the judge or a witness, is at the top nearest the camera. This helps you gauge their reaction to what you are saying without much eye movement on your part.
Stay Level
Problem: Camera is not at eye level
Message: “I’m talking down to you and…do you like my ceiling?”
Fixes: Shoeboxes, books, adjustable desks, etc.
Probably over 90% of our coaching sessions begin with a great view of the attorney’s ceiling. Add a rotating ceiling fan and the attorney looks like they could lift off of their chair at any moment! Most of the time, nearly half of the screen above the attorney’s head is wasted.
If you can see your ceiling in your setup your camera is not at eye level. You will be “talking down” and “looming over” your client, the jury, and your judge. Do whatever it takes for you to raise that camera so you are looking directly at the person you are trying to persuade.
Next, adjust the camera so the top of your head about touches the top of the screen. You should not be able to wear an imaginary hat. This will allow you to use gestures with purpose. You don’t want your hands exploding from the bottom of the screen with random gestures. That message is distracting. You do want to use your hands for meaningful gestures when you make a point such as, “Your honor, there are three reasons (hand visible) to find in our favor on this issue.”
Avoid Clutter
Problem: Multiple monitors, notes and coffee cups
Message: “I think there’s a fly in my office.”
Fixes: Put everything you need on one side and transparency
A two-monitor setup will help with remote trials. With two monitors you have the witness on full screen and also the exhibits full screen. Problems arise when attorneys have the second monitor on their left, their notes on their right and perhaps another monitor above. When the attorney looks right, then left, then down, then up they appear disorganized.
The first fix is to keep everything you need on one side. It makes no difference which side, but this will mean you are looking off camera in only one direction. The second fix is transparency. Tell the court, or state for the record on the video deposition, the arrangement of your setup. Explain why you will be looking “off camera” from time to time. Simply explain, “Your honor, I want the court to know that I have my exhibits on the monitor to my right and that is why I will be looking over there when using them.”
All of this can be distilled down to one point: eliminate distractions. With these three simple fixes you will eliminate the distractions which harm your message over this medium.
Resources:
Marshall McLuhan, Understanding Media: The Extensions of Man, McGraw Hill Education (1964)
Mark Federman, What is the Meaning of the Medium is the Message? (2004)
Science of People (2020)
Published in Litigation News Volume 46, Number 4, Summer 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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The Hon. Mark A. Drummond (ret.) is the Executive / Judicial Director of the Civil Jury Project. He was a trial lawyer for 20 years before serving on the bench as a trial court judge in Illinois for 20 years. He is currently licensed to practice in Illinois and has applied to be licensed in New York.
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The Sui Generis Steve Susman—Legendary Trial Lawyer, Visionary, Champion of the Jury
By Sofia Adrogué & Hon. Caroline Baker (ret.)
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The April 2020 Newsletter of Stephen D. Susman’s brainchild and legacy, the Civil Jury Project at NYU School of Law, commenced with a few poignant and prescient remarks.
The Covid-19 pandemic has accelerated courts' turning to technology in order to deliver justice. Until our events start back up in autumn, we will be working on analyzing how a virtual trial would work. Are there any Constitutional concerns of having jurors deliberate remotely? Would this decrease or increase costs for an already burdened system? How would you pick a jury? Would a virtual trial deliver the same quality of justice? The list of considerations of moving from the physical courtroom to a courtroom in cyberspace is long.[i]
No doubt, “the year 2020 will be remembered as a galvanizing moment in the maturity of legal systems across America.”[ii] And, not surprisingly, within our profession, COVID-19 has presented complex challenges to the American delivery of justice. Our industry, like many others, has been indelibly impacted and it is an open question whether this new “virtual reality” will be a long-term game changer. There has been a “sea change” in the practice of law—virtual meetings, depositions, and/or hearings are here to stay in one way, shape or form. There is no true “going back to the way things were before.”
Texas Chief Justice Nathan L. Hecht, President of the Conference of Chief Justices and Co-Chair of the National Center for State Courts Pandemic Rapid Response Team, powerfully articulated the following.
Since the onset of the pandemic, courts throughout the country have determined to stay open to deliver justice without faltering, no matter the adjustments and sacrifices demanded, but also to protect staff . . . and the public from the risks of disease. We are learning new technology and practices together.[iii]
State courts are the heart of the American system of justice. Collectively we are working together to protect public health while also finding innovative ways to keep the courts open for business.[iv]
A hallmark of our justice system is the right to a jury trial.[v] The pandemic has challenged our ability to safely deliver on that promise, but through the efforts of many Texas judges, clerks, court staff, and attorneys over the past few months, today we have a roadmap to resuming those jury trials, even if that roadmap will be restricted to ensure the health and safety of the public.[vi]
Chief Justice Hecht also predicted and pronounced that “[w]e’re going to be doing court business remotely forever.”[vii] Indeed, within our state, “[t]he Texas judiciary has led the country and world in developing methods to safely host in-person jury trials and conduct them effectively virtually.”[viii] Jury trials did, in fact, occur in counties such as Harris County, where extensive COVID protocols were put in place, voir dire was conducted at NRG Stadium with positive juror turnout, and trials were completed successfully at the courthouse.
However, despite all of the tremendous efforts, jury trials unquestionably were drastically affected. According to David Slayton, the Administrative Director of the Texas Office of Court Administration, as of August, 2020, there were only 1,554 civil jury trials and 2,695 criminal district court trials.[ix] Courts accepted the challenges presented by the pandemic and pivoted to innovative solutions such as virtual summary jury trials and virtual bench trials to seek to deliver justice safely.[x]
Undoubtedly, during the pandemic, litigants, as well as courts (state and federal), continued to balance the various interests, including the extraordinary legal (constitutional, practical and ethical) issues that must be considered in moving a trial from a physical courtroom to a virtual courtroom. Such considerations include as follows: the permissibility and constitutionality of a jury trial by videoconference; potential reduction of ability to obtain an adequate spectrum of jurors (no access to the internet); commensurate technology costs; and whether a virtual trial delivers the same quality of justice (including ethical concerns about whether jurors will follow court instructions when they are attending trial remotely and whether witnesses will follow “The Rule” and how it can be enforced—in other words, how do you know “who’s in the room?”).
While virtual jury trials have been explored, there is a strong sense that safely and successfully returning to in-person jury trials is the overarching goal of courts, attorneys, and litigants. Jury trials by their very nature are “innately human experiences”[xi] and those who have been participants in a jury trial—judges, lawyers, litigants, and jurors—understand and appreciate that often what is communicated in a courtroom non-verbally can be as important as (if not more important than) what is communicated verbally.[xii] Many judges and practitioners have expressed concerns during the pandemic that “the remote, sterile, and disjointed reality of virtual proceedings,”[xiii] as well as the “casualness” of Zoom, not only cannot “replicate the totality of the human experience”[xiv] and guarantee the constitutional rights and protections afforded by the Sixth and Seventh Amendments,[xv] but also virtual proceedings inevitably sacrifice the formality and solemnity in which court proceedings traditionally are and must be conducted.[xvi]
There has been serious debate as to whether virtual jury trials will or should continue post-pandemic; however, clearly lessons have been learned from trying to navigate trials during COVID-19.[xvii]
As we ideally transition into a post-pandemic world, it is evident that courts, lawyers, litigants, and jurors will continue to adjust to the “new normal,” all the while navigating and innovating in ways to ensure that justice is delivered in a safe and efficient manner, and that access to justice and access to participation in the process is protected. It is no small task, but our commitment to the Sixth and Seventh Amendments demands it; we will not waver in facing the task and delivering.[xviii]
The Fifth Edition of our Texas Business Litigation treatise commences with the preface as articulated above.[xix] Years ago, subsequent to receipt of an invitation from the New York editorial team of American Legal Media (“ALM”) to discuss the creation of the Texas Business Litigation treatise, a new book for ALM in the Texas market, we sought, as always, Steve’s sage advice. After extensive consultation, we selected the contributing authors and determined the contents of the treatise with the goal of an encyclopedia on business litigation, including some of the unexpected issues that may emerge such as a bankruptcy proceeding or a criminal investigation along with applicable ethical considerations. We included the “Who’s Who of the Bar,” Texas’ legendary trial lawyers and specialists. Dedicated to Steve, our Fifth Edition addresses the full spectrum of a complex business litigation matter, including one chapter authored by him on jury trial innovations with the supplement authored by his Judicial Director, Mark A. Drummond (ret.), as well as a chapter authored by his son, Harry Susman.[xx]
Stephen D. Susman—An Incomparable Innovator
Epic/ Warrior/
Legendary/Trailblazer & Trial
Legend/Visionary &
Innovator/ Fearless, Peerless
Texas Pioneer/ Egalitarian,
Entrepreneur/ Charismatic &
Fun/ Larger than Life with
a Heart of Gold/ Hope
Diamond, Not a Man of Half-
Measures/Outsized Influence/
Advocate of High Risk/High
Reward/ Susman Godfrey’s
Founding Partner/Big
Daddy/Not “Mr. Susman”/
Institution-Builder/Not a Cult
Leader/ Professor/Friend/
Son/Father/Grandfather/Papa
& Champion of the Civil Jury System[xxi]
A Tribute to SDS - Veni, Vidi, Vici!
So when a great man dies,
For Years beyond our ken,
The Light he leaves behind lies
Upon the paths of men[xxii]
Cognizant there are no words to describe the loss for many, personally and professionally, we sought to capture his irrepressible spirit via an amalgamation of descriptive words for truly a sui generis fellow lawyer. Further, we articulate below why his April 2020 inquiries about innovating, navigating and litigating through the novel COVID-19 virus in his Civil Jury Project at NYU School of Law newsletter were the impetus for the special aspect of our Fifth Edition—each contributing author’s assessment on the COVID-19 pandemic. Moreover, we explore two select arenas, of the many others not feasible to address in this dedication, where Steve’s legacy is palpable and everlasting.
Sofia had the luxury of meeting Steve 30 years ago, working for and learning from him at Susman Godfrey, trying a case with him in federal court in Puerto Rico, having the honor of preparing with him as he participated in the Trial of Hamlet in federal court, and, most impactfully and unforgettably, benefitting from his encouragement and guidance in her role as she envisioned and serves as the Editor of this treatise, ALM’s Texas Business Litigation, with fellow Co-Editor, Hon. Caroline Baker (ret.).
Caroline has had the honor and privilege of serving as a Judicial Advisor to the Civil Jury Project at NYU School of Law and working with Steve to fully develop another brainchild of his—the Young Lawyers in the Courtroom Program, which was designed to provide young lawyers meaningful and substantive speaking opportunities in the courtroom. Thankfully, Steve was able to see this invaluable program come to fruition. The Young Lawyers in the Courtroom Program, in conjunction with the Houston Young Lawyers Association and with the full support of the Houston Bar Association, was implemented in the Harris County district courts in 2018.[xxiii]
Commercial Litigation in the 21st Century—
the Aftermath of the “Vanishing Trial”
In paradigmatic Susman form, the legendary trial lawyer dedicated countless hours and commensurate resources to address why jury trials are vanishing. He sought to give fellow lawyers, the judiciary, and, indeed, society, a roadmap to keep jury trials from becoming extinct,[xxiv] aware of the numbers taking a precipitous decline across state and federal courts nationwide. In point of fact, during the last fiscal year, in Texas state courts, 0.11% or less of the cases were disposed of by jury trial.[xxv]
Aware that litigation in the 21st century remains the subject of vigorous substantive debate and commensurate study, he envisioned, led and funded the Civil Jury Project in 2015 at NYU School of Law—a “collaborative effort between law students, lawyers, judges and political bodies across the nation” to “examine the factors leading to decline in civil jury trials and educate the legal community and the public on methods to revitalizing the dying system.”[xxvi]
To date, the Civil Jury Project at NYU School of Law has engaged over 331 Judicial Advisors, 71 Judicial Advisors Emeritus, 73 Academic Advisors, and 45 Jury Consultant Advisors, who are focusing on educating the public on their right to a jury trial; informing the public that jury trials are declining at an alarming rate; and advocating for the utilization of tools to reduce the costs of trial such as time limits and jury innovations, including juror questions, early instructions to the jury, and interim arguments.
Of interest, his commitment to addressing commercial litigation trial work in the 21st century and the aftermath of the vanishing trial was not new. He developed a set of Pretrial Agreements that his namesake firm, Susman Godfrey, proposed to opposing counsel.[xxvii] Steve’s initial inspiration merits repetition:
Because I was blessed by being involved only in complex commercial cases and with good opposing counsel, I was able to develop a set of Pretrial Agreements that my firm has been proposing to opposing counsel for over a decade.
***
The key to the efficacy of such a Pretrial Agreement has always been to attempt to reach agreement on as many of these items as possible before discovery begins. Once you are in the heat of battle, what appears to be good for one side is often deemed to be bad for the other; therefore, it is hard to reach agreement at that point.[xxviii]
Steve’s Pretrial Agreements were so effective that the concept continued to evolve and he created a list of possible Trial Agreements,[xxix] which culminated in a working website appropriately named Trial By Agreement[xxx] where these agreements can be found and debated among trial lawyers. Trial by Agreement is a way of “reduc[ing] expense, stress and many of the uncertainties that are associated with pretrial rulings and jury trials.”[xxxi]
Steve’s approach to litigation was principled, competitive, and pragmatic:
I truly believe that Trial Agreements are worthy of full discussion among experienced trial lawyers and judges well in advance of pretrial. My attitude is to take whatever agreements I can get—the idea being that any such agreements advance the ball and make pretrial and trial more professional and efficient, not to mention making trial more understandable to the jury. Trial by Agreement is a way of reducing expense, stress and the uncertainty of pretrial rulings and a jury trial.[xxxii]
Training Young Lawyers in an Era of Fewer Jury Trials
Another arena in which he made an indelible impact is the teaching and training of young lawyers; indeed, he mentored and sponsored even before such terms were in vogue. State-of-the-art programs like the Young Lawyers in the Courtroom Program perfectly demonstrate that, as always, what Steve promoted, he delivered—he walked his talk:
In this time of ‘vanishing’ trials, I feel like an old dinosaur hunter. There is no need to teach those skills to youngsters if there are no dinosaurs around. That said, I do think there are many opportunities for young lawyers to practice their litigation skills by participating in mock trials. We also have a rule at our firm that any lawyer that works on a case is entitled to stand-up time at the trial. We can only teach by sharing the limited trial experiences that we have. Jurors love to see a young lawyer get opportunities to question witnesses.[xxxiii]
Steve advanced the much debated and scrutinized “roadmap for reform”[xxxiv] for our 21st century civil justice system. As his colleagues so poignantly noted in the August Newsletter of the Civil Jury Project at NYU School of Law, “[h]e crisscrossed the country at his own expense to talk to trial attorneys, trial judges, and most importantly, jurors.”[xxxv] He “advanced jury innovations” and “was a champion of and a cheerleader for”. . . ‘the purest, fairest, most inclusive and robust expression of direct democracy that the world has ever seen.’”[xxxvi]
Keenly aware of these enigmatic times, the April 2020 Newsletter of the Civil Jury Project at NYU School of Law, opened with Steve’s strikingly prophetic observations. “The Covid-19 pandemic has accelerated courts' turning to technology in order to deliver justice. It will have far reaching effects for all of us—and for our justice system.” Steve also appropriately remarked that the list of considerations of “moving from the physical courtroom to a courtroom in cyberspace is long,” including the following brilliant Susmanesque inquiries: (i) constitutional concerns of having jurors deliberate remotely; (ii) would this decrease or increase costs for an already burdened system?; and (iii) would a virtual trial deliver the same quality of justice?
Steve vehemently believed that juries are the views of the community and sacrosanct; thus, he invited his team, including Judge Drummond, his Judicial Director, to survey and analyze how a virtual trial would work. As a result, the Civil Jury Project at NYU School of Law, armed with several hundred judicial and academic advisors and Steve’s gravitas, turned the focus to best practices for virtual jury trials.
To be clear, a virtual trial for Steve, Judge Drummond and the Civil Jury Project at NYU School of Law, like for all of us, is not the same as being there. Steve built his reputation through “being there;” now the mission is to anticipate what is next and determine how best to move efficiently and safely through this global pandemic and beyond.
We have no other option. Preservation of the right to jury trial is the key. Regardless of how individual states decide to tackle the challenges of this new world, it is clear that proactive communication and consistent reassurance will be necessary to maintain public confidence and maximize participation in the jury process.
Here’s to authentic, empathetic, realistic, belligerent optimism as we seek to navigate, innovate, and litigate in this “new normal” emulating the joie de vivre of Steve. Speaking about Susman Godfrey’s democratic structure and culture as well as his professional legacy, Steve’s words are immensely moving and spot on:
I want them to say. He was very fair. He was very honest. He loved to play. . . And he was very proud of doing things the right way. The moral way. The ethical way. And I have been. I have been.
Here’s to our Super Sus, our Sui Generis Stephen D. Susman. He epitomized Carpe Diem.
May he rest in peace.
Sofia Adrogué & Hon. Caroline Baker
August 2021
------
[2] Mitchell A. Chester, The Dynamic Opportunities and Responsibilities of Virtual Jury Trials, Civil Jury Project at NYU School of Law, Vol. 5 Issue 10 (October 2020),
[3] Rapid Response Team: Pandemic Roadmap to Guide State Courts Forward, State Justice System,
(“The Pandemic Rapid Response Team (RRT), a group of chief justices and state court administrators established in March 2020, has created a roadmap to help state courts move forward during the pandemic—and after it ends. . . . The RRT was created by the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) and is supported by National Center for State Courts (NCSC). The State Justice Institute (SJI) is providing funding for this initiative.”)
[4] State courts lead national effort to maintain access to justice despite COVID-19 pandemic, April 2020,
See also Pandemic lessons learned, March 2021,
[5] Report details Texas jury trials during COVID-19 pandemic, Aug. 31, 2020,
[6] Report details Texas jury trials during COVID-19 pandemic, Aug. 31, 2020,
See also Zoom courts will stick around as virus forces seismic change, July 30, 2020,
[8] David Slayton, Administrative Director of the Texas Office of Court Administration, Preserving the Right to Jury Trial During a Pandemic: A Daunting Task, The Advocate, Vol. 94, p. 9 (Spring 2021). See www.litigationsection.com
[10] David Slayton, Administrative Director of the Texas Office of Court Administration, Preserving the Right to Jury Trial During a Pandemic: A Daunting Task, The Advocate, Vol. 94, p. 11 (Spring 2021). See www.litigationsection.com
[13] The Jury Returns, Nov. 24, 2020, https://www.jdsupra.com/legalnews/jury-trials-are-innately-human-89547/ (citing Hon. Rodney Gilstrap, Chief Judge, U.S. District Court Eastern District of Texas, Nov. 20, 2020 Order). See also Quentin Brogdon, Mandatory Online Jury Trials: An Idea Whose Time Has Not Come, Texas Lawyer, 2020 ALM Media, August 30, 2020, https://www.law.com/texaslawyer/2020/08/30/mandatory-online-jury-trials-an-idea-whose-time-has-not-come/
[15] Jury Returns, Nov. 24, 2020, https://www.jdsupra.com/legalnews/jury-trials-are-innately-human-89547/ (citing Hon. Rodney Gilstrap, Chief Judge, U.S. District Court Eastern District of Texas, Nov. 20, 2020 Order). See also Susan A. Bandes & Neal Feigenson, Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom, 68 Buff. L. Rev. 1275 (2020), https://digitalcommons.law.buffalo.edu/buffalolawreview/vol68/iss5/1
[16] See, e.g., Dr. Ken Broda-Bahm, The Virtual Trial: Be Conscious of What is Lost and What is Found, Persuasive Litigator, March 18, 2021, https://www.persuasivelitigator.com/2021/03/the-virtual-trial-be-conscious-of-what-is-lost-and-what-is-found.html See also Susan A. Bandes & Neal Feigenson, Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom, 68 Buff. L. Rev. 1275 (2020),
[17] David Slayton posits as follows: “For instance, with the increased participation rate of virtual jury selection, should we consider the barriers to in-person jury service and retain this method of selection? Should we retain the increased flexibility for jurors provided through technology to alert the court of its issues to appearing for jury service? I believe the answer to these is yes, but more study is necessary before the final verdict is in.” David Slayton, Administrative Director of the Texas Office of Court Administration, Preserving the Right to Jury Trial During a Pandemic: A Daunting Task, The Advocate, Vol. 94, p. 12 (Spring 2021). See www.litigationsection.com
[18] Jessica Arden Ettinger, David Gerger, & Barry J. Pollack, Ain’t Nothing Like the Real Thing: Will Coronavirus Infect the Confrontation Clause?, The Champion, 2020 National Association of Criminal Defense Lawyers ®, Inc., https://www.nacdl.org/Article/May2020-AintNothingLiketheRealThingWillCoronavirus. See also Richard Emery and Daniel Cooper, COVID-19 Cannot Be the Death Knell for the American Jury Trial, N.Y.L.J. (Apr. 20, 2020), https://www.law.com/newyorklawjournal/2020/04/20/covid-19-cannot-be-the-death-knell-for-the-american-jury-trial/
[19] Sofia Adrogué & Hon. Caroline Baker (ret.), Texas Business Litigation (ALM 5th Edition 2021) (forthcoming).
[20] The Fifth Edition dedicated to Stephen D. Susman includes chapters analyzing the following: (i) alternative dispute resolution; (ii) antitrust; (iii) bankruptcy ramifications in business litigation; (iv) breach of fiduciary duty claims in business transactions; (v) evaluation of business cases; (vi) contorts; (vii) corporate governance and regulatory proceedings; (viii) criminal law in business torts cases; (ix) damages; (x) discovery; (xi) employment law; (xii) experts; (xiii) fraud and negligent misrepresentation; (xiv) intellectual property and trade secrets litigation; (xv) ethics; (xvi) the liability case; (xvii) oil and gas; (xviii) preservation of error and appeal tactics; (xix) speech based torts: libel, slander, business disparagement, and invasion of privacy; (xx) third-party litigation finance; (xxi) business divorce; (xxii) jury trial innovations; (xxiii) e-discovery; (xxiv) construction litigation; and (xxv) tactical considerations in modern trials.
[21] Sofia Adrogué, Litigating Through Crisis, The Sui Generis “Super Sus”—Stephen D. Susman, The Advocate, Vol. 93, p. 45 (Winter 2020). See www.litigationsection.com
[27] Sofia Adrogué & Hon. Caroline Baker, Texas Business Litigation (ALM 4th Edition 2019) (About This Book).
[32] Sofia Adrogué & Hon. Caroline Baker, Litigation in the 21st Century: The Jury Trial, The Training & The Experts—Musings & Teachings from David J. Beck, Lisa Blue, Melanie Gray & Stephen D. Susman, The Advocate, Vol. 56, p. 16 (Fall 2011). See www.litigationsection.com
[33] Sofia Adrogué & Hon. Caroline Baker, Litigation in the 21st Century: The Jury Trial, The Training & The Experts—Musings & Teachings from David J. Beck, Lisa Blue, Melanie Gray & Stephen D. Susman, The Advocate, Vol. 56, p. 16 (Fall 2011). See www.litigationsection.com
[34] Sofia Adrogué & Hon. Caroline Baker, Texas Business Litigation (ALM 4th Edition 2019) (About This Book).
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Sofia Adrogué is a trial partner with Diamond McCarthy LLP, a 10 year Texas Super Lawyer & Latino Leaders Magazine’s one of U.S. “25 Most Influential Hispanic Lawyers” & “Most Powerful Women in Law.” She serves as the Editor of the Texas Business Litigation treatise & has published and/or spoken on over 250 occasions. She is a graduate of Harvard Business School Owner/President Management Program (Keynote Speaker & U.S. Representative) & University of Houston Law Center & Rice University (magna cum laude, Phi Beta Kappa, both on full academic scholarships). She has received over 40 awards and serves as the Co-Host & Co-Producer of Latina Voices—Smart Talk. Sofia has been recognized for her public service by the City of Houston with a proclamation of July 10, 2004 & December 18, 2018, as “Sofia Adrogué Day.”
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A fifth-generation Texan, Hon. Caroline Baker served the citizens of Harris County as a judge for 21 years before retiring at the end of 2018 as a senior judge. Prior to the bench, she was a partner in the litigation firm of McFall, Sherwood & Sheehy. A graduate of Princeton University and the University of Texas School of Law, she is Board Certified in Personal Injury Trial Law and has been elected to membership in the American Board of Trial Advocates. Judge Baker was consistently rated “Outstanding” in the Houston Bar Association Polls and received the 2017 “Trial Judge of the Year” Award from the Texas Association of Civil Trial and Appellate Specialists, as well as the Mexican American Bar Association of Texas 2018 Service Award for “Outstanding Public Service in the Community as a District Court Judge.”
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Look out for the January 2022 Newsletter!
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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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Samuel Issacharoff
Faculty Director
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Mark Drummond
Executive/Judicial Director
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Michael Pressman
Research Fellow
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Kaitlin Villanueva
Admin. Assistant
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