“Words are like weapons, they wound sometimes.”1
Since our last newsletter I cannot remember a time when I read so many stories about words. Stories about the meaning of words, stories about too many words and stories about too few words. Click on the links to see what I mean:
In world issues:
In politics:
In academia and business:
In the courts:
Words are, of course, our bread and butter as trial attorneys. Words matter. I was told by a victim of a drunk driving incident that I should use the term "avoidable crash" instead of "accident." There are big differences to the listener between the words "illegal alien" versus "migrant" versus "refugee" versus "asylum seeker" versus "dreamer."
When I train attorneys in jury persuasion I find myself saying often to use plain language instead of legalese. So, when I read about the aftermath surrounding the three university presidents testifying before Congress I saw a connection between how they answered a simple question and an article I had just written about expert cross, which is my contribution to this issue.
A final note about the words we use to persuade jurors. I always cite this to young attorneys doing jury trial work. I tell them to read it ten times - out loud - with the hope that this will cure them of using legalese forever.
"The agents involved speak an almost impenetrable jargon. They do not get into their cars; they enter official government vehicles. They do not get out of or leave their cars, they exit them. They do not go somewhere; they proceed. They do not go to a particular place; they proceed to its vicinity. They do not watch or look; they surveille. They never see anything; they observe it. No one tells them anything; they are advised. A person does not tell them his name; he identifies himself. A person does not say something; he indicates. They do not listen to a telephone conversation; they monitor it. People telephoning to each other do not say “hello;” they exchange greetings. An agent does not hand money to an informer to make a buy; he advances previously recorded official government funds. To an agent, a list of serial numbers does not list serial numbers, it depicts Federal Reserve Notes. An agent does not say what an exhibit is; he says that it purports to be. The agents preface answers to simple and direct questions with “to my knowledge.” They cannot describe a conversation by saying “he said” and “I said”; they speak in conclusions. Sometimes it takes the combined efforts of counsel and the judge to get them to state who said what. Under cross-examination, they seem unable to give a direct answer to a question; they either spout conclusions or do not understand." 2
The best advice came from Winston Churchill:
"Short words are best and the old words when short are best of all."
We begin this issue with an article by Professor Renée Lettow Lerner, one of our academic advisors, outlining her new work - The Jury: A Very Short Introduction. We thank Professor Lerner for her contribution.
Our Research Fellow, Michael Shammas, reports the important work being done by the Canadian Juries Commission in the area of improving the experience for jurors with a special focus on mental health and support.
- Warren, Diane. Lyrics to “If I Could Turn Back Time.” Performed by Cher, “Heart of Stone” album, Geffen Records, 1989
- United States v. Marshall, 488 F.2d 1169 (9th Cir. 1974)
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Sincerely,
Hon. Mark A. Drummond (ret.),
Executive/Judicial Director
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April 25, 2024
Houston Jury Improvement Lunch
Location: TBD
June 26 & 27, 2024
ABA/NITA Training for Legal Services Attorneys
Bradley LLP
Birmingham, AL
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The Jury: A Very Short Introduction
By Renée Lettow Lerner
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Although readers of Jury Matters are deeply familiar with civil juries, and this book is only 130 pages long, still there is much here that may interest and surprise. The book explores many forms of the jury—civil, criminal, grand, and the mixed panel of professional judges and lay jurors—throughout time and around the world. This wide perspective brings to light revealing comparisons. What is the jury for? What size should it be, and how chosen? What sorts of controversies should it decide? Should it be unanimous? How should jury error be corrected?
This book took 18 months to write, but it’s the culmination of decades of work on the jury. It’s been almost exactly 30 years since I’ve been thinking and writing about juries. And my fascination began with a civil case. In 1994, I was a summer associate at the Washington, DC office of Kirkland & Ellis. One morning a partner needed help. He had just gotten off the phone with a client, who had asked him to write a petition for certiorari for the U.S. Supreme Court. That was not so unusual, but the deadline was: the petition was due that day. The case was Jackson v. General Motors, involving a one-car crash and a civil jury verdict in Mississippi state court. I and others helping with the petition literally ran through the halls carrying printed stacks of research. Later, I had time to catch my breath and think more thoroughly about the case and how it illuminated a part of the U.S. legal system. I will never forget that case, which set me off down the path of studying juries that I follow to this day.
Throughout the course of my work on the jury, I’ve benefited enormously from talking with judges, lawyers, and trial consultants, as well as other academics. But some of the most valuable insights have come from jurors themselves. Their perspective greatly informs this book.
Although I’ve spent decades researching the jury, writing a book of this scope brought home to me the importance of certain historical features of the jury.
One thing that had always puzzled me about jury trials and verdicts at the time of the founding of this country is their speed. In the late eighteenth century, a single judge could preside over multiple jury trials to verdict each day, often a dozen or more. Surely, I thought, there would be some holdouts in some cases.
Writing this book made me realize the importance of an old common law rule: from the time the jury was sworn in to the time it gave its verdict, the jurors were prisoners. They were not allowed to talk with anyone, but also they were not allowed to have, in the classic formulation, “meat, drink, fire, or candle.” In other words, no food, drink, heat, or light. The judges took the rule seriously. One poor juror was threatened with fines and imprisonment for sneaking a small apple into jury deliberations. That kind of deprivation had a way of encouraging jurors to make up their minds. And it was also a restraint on counsel from going on too long. The jurors would get hungry and cranky. Not surprisingly, when judges relaxed the rule in the nineteenth century, jury trials and deliberations lengthened.
Another feature that made jury deliberations far more rapid then was that many of the jurors were repeat players. Property qualifications for service on juries meant that the same persons would be summoned as jurors again and again. They became familiar with the law and with sifting evidence. This was especially true of the foreman, a position which evolved into a sort of office, with a separate oath. To take one example, in the mid-seventeenth-century in Kent, Robert Day served as a juror in at least 118 trials, 111 of them as foreman. Such an experienced foreman could help guide the jury to a swift verdict, for better or worse. The jury of the eighteenth century, at the time it was enshrined in U.S. constitutions, was far different from the jury of today.
When thinking about juries, many Americans tend to picture the criminal jury. But in fact the civil jury came first, and inspired the criminal jury. The book uncovers these medieval English origins, and also the arguments at the founding of this country about the civil jury. In the colonial American struggle with Britain, both civil and criminal juries nullified hated British laws. The states immediately put rights to both civil and criminal juries into their new constitutions. When it came to drafting the federal constitution, the civil jury was controversial. The book tells the story of the debate between Anti-Federalists such as Brutus and Patrick Henry on the one hand, and Federalists such as Alexander Hamilton on the other, culminating in the Seventh Amendment.
Controversies over the civil jury continue. The book plunges into disputes about the tort system and contingent fees. One of my favorite characters in this story is Melvin Belli, the flamboyant San Francisco trial lawyer known as “the king of torts,” who helped to organize the group of plaintiffs’ lawyers now known as the American Association for Justice. Belli had a skeleton named Elmer, which he used to show the jury how his client was injured.
Jury selection gets full attention, including the development of voir dire and the wide divergence of current American practice from that of the rest of the world.
The book addresses modern debates over the size of juries and the question of unanimity. These debates come into sharper perspective when compared with juries in ancient Athens. Ancient Athenian juries had hundreds or even over a thousand members. These jurors voted secretly, and a majority sufficed for a verdict. This type of jury is deeply foreign to us, but the idea was simple: The decision should represent the view of the people. The best way to do that is to have large numbers of jurors, randomly selected. This is taking seriously the rationale of representation of the community and the fair cross section requirement.
As readers of Jury Matters are well aware, the civil jury is in decline. Currently fewer than 1% of federal civil cases reaching disposition after court action are decided by jury trial. The book discusses the reasons for the decline, including the merger of law and equity that resulted in extensive pretrial discovery mechanisms. The decline of the civil jury in this country should not surprise us, given its virtual extinction elsewhere. Even in England, the birthplace of the civil jury, and in other former British colonies, the civil jury has virtually been abolished. The book describes the process.
One hope for revival of the jury may involve lessons from ancient Athens, combined with modern technology. Large juries could be assembled online, with evidence presented virtually. To hold jurors’ attention and to reduce the cost to them, presentations of evidence would have to be much snappier. Shorter trials might take only two hours; for more complicated cases, presentations could occur in one-hour daily segments. Jurors could go on with their normal lives while serving. Court experience during COVID has shown that, using remote technology, a wider cross-section of the population is likely to participate. What is old may be new again.
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Renée Lettow Lerner is the Donald Phillip Rothschild Research Professor of Law at George Washington University Law School and an academic advisor to the Civil Jury Project. For three decades, she has researched and written about the jury in the United States and other legal systems. She studied legal history at Oxford University as a Rhodes Scholar. After graduating from Yale Law School, she was a law clerk to Justice Anthony M. Kennedy of the U.S. Supreme Court and to Judge Stephen F. Williams of the U.S. Court of Appeals for the District of Columbia Circuit. From 2003 to 2005, she served as Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice. She was a witness in a murder case in Paris, France, before a mixed panel of professional judges and lay jurors. Lerner is also the author of History of the Common Law: The Development of Anglo-American Legal Institutions (2009).
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Long Answers to Short Questions: Crossing the Expert Who Can’t Say “Yes”
By Hon. Mark A. Drummond (ret.)
Executive/Judicial Director of the Civil Jury Project
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Introduction
On October 23rd my article below was published in Litigation News. A little over a month later, three university presidents appeared in front a congressional committee. The lede to the Times article framed it this way:
"Support for the presidents of Harvard, the University of Pennsylvania and M.I.T. eroded quickly on Wednesday, after they seemed to evade what seemed like a rather simple question during a contentious congressional hearing: Would they discipline students calling for the genocide of Jews?"
The fallout was swift, answers were walked back, clarified; apologies were made and resignations occurred. Even the preparation of the presidents for their testimony came under scrutiny.
My only purpose in bringing this up is that rarely is there this much coverage about very smart people fumbling answers to simple questions. However, we see this dynamic in front of juries all of the time. The expert who cannot answer simple questions without a long, rambling narrative.
From my purely anecdotal review of juror surveys I sent out after every trial they confirmed some basic truths. Short, simple questions are best (on both direct and cross) and experts who give long answers to short, simple questions on cross lose credibility with the jury.
In the final analysis it really doesn't matter what the lawyers think the answer should be or what even the judge thinks the answer should be. All that matters is what the jury, or in the case of congressional hearings, what the public thinks the answer should be.
Long Answers to Short Questions: Crossing the Expert Who Can’t Say “Yes”
In the musical Oklahoma, Ado Annie promises two different suitors that she will go to the dance with them. She laments her dilemma in the song “I Cain’t Say No.” The song reminds me of a phenomenon we see in court with some experts. Experts who seem to have a constitutional inability to answer simple questions with a “yes” or “no.”
The causes are threefold. First are the “hired gun” experts who will say anything to earn their fee. Second are experts who think that using multisyllabic words will make them sound more expert, which is wrong. And third is counsel inviting long answers by the words we choose.
There are five parties to any cross-examination. You, the expert, the judge, opposing counsel, and, most importantly, the jury. It really doesn’t matter what four of the parties think. All that matters is what the jury thinks the answer should be.
In a past column, I outlined the template I used when crossing an expert. I look at expert evidence as two islands. There is the “Island of Expert Opinion,” which is a very dangerous island! Unless I could envision the expert saying, “You’re right; I’m wrong,” I tended not to venture onto that island. I let my own expert fight on that island, and I fought on what I call “The Island of Everything Else” (TIEE).
One TIEE topic is “things agreed upon.” Let’s say you’re defending an injury case and you know the plaintiff waited three weeks before going to the chiropractor. You ask the simple question, “Ms. Jones waited three weeks to come see you, true?” Now what is the response in the real world? It is usually not the chiropractor slowly nodding his head in agreement and saying, “Yes, counsel...you're right…she waited three weeks.” In the real world, this usually invites a short lecture. The lecture begins, “Now counsel, it’s not atypical for soft tissue injuries to fail to manifest themselves, and waiting might actually be beneficial due to…” The expert’s answer concludes minutes later. How do you handle this?
Ask a Better Question
My question included the word “waited.” This is the opening the expert is looking for. Totally factual questions avoid the problem or at least show that the expert is overreaching.
“You recorded the date of the accident as July 5, 2022, correct?” “Her first visit with you was on July 26, 2022, true?” “Three weeks after the accident, right?”
The expert has a dilemma. Does he admit that July 26 is three weeks past July 5? Or does he try to volunteer a reason for the three-week delay. It is tougher for him to volunteer when he is asked fact questions. Also, any adverb or adjective that you inject into a question that the expert has not used in his or her report invites a long answer.
After a recent webcast I did on expert cross-examination, an expert emailed me asking how he can maintain credibility when he disagrees with the premise implied in the short, fact questions. I advised against volunteering a long, nonresponsive answer. I suggested relying instead on redirect by counsel with a question such as “You were asked about Ms. Jones waiting three weeks to see you. How does that affect your opinion?”
Repeat the Question
After a long, nonresponsive answer, just repeat the question. Do it slower, quieter, and with pausing. “Doctor…she waited…three weeks…to come see you…true?” If you get another long answer, perhaps you do it a third time, but that is probably the limit. You could ask the court to strike the answer, but it is much more fun and effective to use repetition.
What I would see often with this exchange was the attorney getting more and more exasperated with not getting the clean, one-word response. Do not worry. The jury knows the answer. I once told two attorneys that I was going to create cards for the jurors like those used to score gymnastic events. Instead of numbers, the cards would read, “We get it!”
Other Options
“So, doctor, the short answer to my question would be ‘yes’?” “Doctor, you’re answering more than I am asking….She waited three weeks to see you, correct?” “So, Doctor, July 26th is not three weeks after July 5th? That’s all I’m asking.”
Ask “The Answer Does Not Matter” Questions
These are questions that are more important than the answers. These are questions that the jurors know the answers to. For example, in slip and fall cases, questions like these:
“Professor, you agree that as we sit here today, there are people slipping and falling all over the world?” “And would you also agree that sometimes people trip and sometimes people fall, and it is simply no one else’s fault?”
There are only three possible answers to the questions above: “Yes,” “No, I don’t agree,” or “I don’t know.” And the jury knows that any answer other than “yes” is the wrong answer. Likewise, if your expert has done more than the other expert in terms of gathering information, you can ask questions on cross like these:
“Doctor, you would agree that more information is better than less information?” “You agree that your examination should be thorough, true?”
“Yes or No, Just Yes or No!” Questions
This is a technique that is rarely effective. The attorney declares to the expert that all of the questions can be answered “yes” or “no.” First, if I were on the other side, I would object to this. Second, it is rarely true, unless the attorney is really precise. Third, it makes it appear that you are afraid of the witness.
The Trial Dynamic
Beware the advocacy instructor who says “always” or “never.” The trial of a case is art, not science. The great advocates (to paraphrase Shakespeare) fit the cross to the expert, the expert to the cross. Not all techniques work all the time.
The jury does not know your history with the expert. They were not at the deposition, and they simply cannot understand why you appear so agitated with the expert. Remember, the jury is always one step behind you on this.
Tailor your cross accordingly. With two paid opposing experts, I usually covered compensation with my expert near the start of my direct. I wanted to clear the air first before I moved to the opinion. When I was crossing the opposing expert, I usually kept the money bias questions in my back pocket. I would pull them out when the expert could not answer simple questions. This juxtaposition helped show the compensation bias.
The Last Word
Always remember that the expert will be long gone when you do your closing. The expert cannot say anything. Comment on how the expert was unable to answer simple questions.
A Favorite Story
Some judges might frown upon this. I quite enjoyed it. After several tries to get a short answer:
Counsel: “Professor, you’re wearing a white shirt?” Opposing Counsel: “Objection! Relevance!” Counsel: “Your Honor, I just wanted to see if he could answer one question ‘yes’ or ‘no.’”
Resources
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Mark Drummond, “Expert Cross—The Islands of Expert Opinion,” 40 Litigation News, No. 1 (Fall 2014).
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Mark Drummond and Laura McNally, “Expert Cross: A Template that Works,” Nat’l Inst. for Trial Advoc.(June 22, 2023).
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Oscar Hammerstein II, “I Cain’t Say No,” Oklahoma, music by Richard Rodgers (1943).
Published in Litigation News Volume 49, Number 1, Fall 2023. © 2023 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.
Future Events
April 25, 2024
We are working on scheduling another Jury Improvement Lunch in Houston with the site yet to be determined. We thank Geoff Gannaway of the Beck Redden firm and Chair of the Litigation Section of the State Bar of Texas for reaching out to us.
June 26 & 27, 2024
We will assist in training the next generation of trial lawyers in legal services at the Bradley firm's office in Birmingham, Alabama. Anne Marie Seibel, chair of the Litigation Section of the ABA, has graciously offered her firm to host the 2024 training.
As always, if your court or bar association is interested in a presentation on jury trials, the Civil Jury Project or jury improvement tools please call me at (217) 430-7459 or contact me at markd56.md@gmail.com.
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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 a program director and co-director for Teacher Training for The National Institute for Trial Advocacy. For over 25 years he has written the Practice Points column for Litigation News, a publication of the Litigation Section of the American Bar Association. He has returned to the practice of law and is currently licensed to practice in Illinois and has applied to be licensed to practice in New York.
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Report on the Civil Jury Project’s Meeting on Juror Mental Health with the Canadian Juries Commission
Michael Shammas, Research Fellow
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In early October, Judge Drummond and I met with Mark Farrant, founder of the Canadian Juries Commission, to discuss initiatives aimed at improving juror mental health across Canada. Coming in the wake of our own country's mental health crisis—one we’re still reeling from in the wake of the social isolation and societal upheaval triggered by Covid-19—developments in Canada could prove useful if imported to the American context.
The first initiative—Jury Duty Appreciation Week—is simple in execution but has a far-reaching impact on jury mental health. The Canadian Juries Commission celebrated its second Canadian Jury Duty Appreciation Week in May 2023. To commemorate the event, Ontarian attorney-general Doug Downey made several social media posts, and the federal justice minister produced a long-form video. The event is beginning to be informally celebrated outside of Ontario. Reflecting the positive impact of this initiative, a new Senate Bill, Bill S252, “An Act to Recognize Jury Duty Appreciation Week in Canada,” is being considered in Canada’s parliament. Sponsored by Senator Lucie Moncion, herself a former juror diagnosed with PTSD after serving on a high-profile murder trial, the bill would: (1) establish Jury Duty Appreciation Week among the list of federally recognized observances; (2) allow the provinces and territories to recognize the event in their own manner; and (3) be explicitly modeled after U.S. Jury Appreciation Weeks established in several state and federal jurisdictions.
Statutes formalizing holidays that recognize jurors for their service are one way to support jurors, but the Canadian Juries Commission pinpointed several other avenues to help jurors. It was recently invited to consult the United Kingdom on developing supports for UK jurors, and—on November 21, 2023—participated in an event hosted by Baroness Berridge at the House of Lords, titled, “Addressing Juror Distress: How to Achieve a Trauma-Informed Court System.” This was the first seminar of its kind to take place in the House of Lords. The baroness’s invite was partly informed by the Canadian Juries Commission’s British Columbian Jury Duty Mental Health Support Pilot. Funded exclusively by Department of Justice Canada (JPIP), the three-year initiative includes measures aimed at (1) training and program development; (2) program delivery and support; and (3) development funding, including primary research with jurors and stakeholders.
Yet another initiative, Juror Peer Support, takes a page from programs like Alcoholics Anonymous. The Canadian Juries Commission trains former jurors to provide peer support to current jurors. The Mental Health Commission of Canada recommended peer support to help prevent suicides among first responders, and the Canadian Juries Commission took this suggestion and imported it to the jury context. Peers provide support across several dimensions, including support for moral injuries, stress, anxiety, and grief; workplace support; work-life balance; and managing life post-trial. Jury peers commit to 1 hour per week of online support, and are only permitted to serve as jury peers after completing a four-week intensive online course, entailing 30 hours of classwork.
The Canadian Juries Commission has also spearheaded a Court Support program, which provides training to court services staff and sheriffs. The Commission provides comprehensive mental health first-aid education and training to court services or sheriffs that manage jurors on a daily basis and throughout trial. Training is based on four modules online via a Learning Management System: (1) Background and Education on the Jury Experience; (2) Integrity in Action: Sheriffs’ role and responsibility; (3) Mental Health Definitions and Disorders; and (4) Delivering Mental Health Support and Scenarios. Three hours of training are required for certification.
As part of the Juror Court Support initiative, the Commission provides training aimed at having future mental health first responders understand jury issues across the trial as told by jurors, understand juror experiences at each stage of the trial, and hear the lived experience of jurors. Additionally, the Commission aims to have sheriffs understand their role and responsibility in jury management, balancing support for jurors with their duty to the court. Importantly, they are trained to provide this support while maintaining impartiality. The training is designed to support full-time duty staff, overnight duty officers, and cadets.
One aspect of the presentation—related to the Juror Court Support initiative—that I found most insightful was the Commission’s definition of mental health. Per the Commission, mental health is not mental illness. Instead, mental health is a state made up of physical health and emotional health and the ability to feel joy and respond to certain conditions in life. Put differently, mental health encompasses one’s ability to exercise agency. Self-care and resiliency are two important markers of mental health. Interestingly, the mental health module was co-developed and reviewed by the Centre for Addiction and Mental Health (CAMH), suggesting that juror mental health initiatives should be developed not only by legal experts but also by mental health specialists.
Opportunities to Discuss Juror Mental Health in the United States
The Commission is actively looking for opportunities to present in the United States. It is looking into the viability of giving presentations at law schools, criminology departments, and psychology departments. In addition, it is looking at partnerships to advocate to introduce similar juror support programming in state and federal courts. Finally, in light of recent high-profile traumatic trials in New York, the Commission sees New York State as an especially promising state for future initiatives.
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Michael Shammas is a research fellow for the Civil Jury Project. In addition to his academic appointment at the NYU School of Law, he has taught Legal Research & Writing at Tulane Law School. After graduating from Harvard Law School in 2016, he practiced as a litigator for two years at Paul, Weiss, Rifkind, Wharton & Garrison LLP and clerked for a federal district court judge and for a judge on the United States Court of Appeal for the Sixth Circuit. He currently lives in North Carolina and is transitioning back into law practice.
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Look out for the May 2024 Newsletter!
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Civil Jury Project, NYU School of Law
Wilf Hall, 139 MacDougal Street, Room 407, New York, NY 10012
markd56.md@gmail.com
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Stephen Susman
Founder
1943 - 2020
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Samuel Issacharoff
Faculty Director
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Mark Drummond
Executive/Judicial Director
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Michael Shammas
Research Fellow
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Kaitlin Villanueva
Admin. Assistant
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