Recently I wrote about the difficulties in helping clients to make sense of all of the information and misinformation that shows up in print and electronic media about the legal system. But dealing with clients, with whom we can talk freely and confidentially, is simple and rewarding when compared to the process of trying to figure out what effect these sources have on jurors–and what to do about it.
It’s no secret that years of insurance company propaganda about tort reform and a supposed “malpractice crisis” have left their mark on the public, and by extension, on the jury pool, making it very difficult for injured victims to get fair trials. But there are much more subtle and invidious effects from popular media sources that are difficult to combat because they are so widespread and varied that it’s hard to be aware of them all, let alone figure out whether and how they might affect a trial.
I’m thinking of things like the endless series of legal and medical television programs–The Good Wife, House, Grey’s Anatomy, and their ilk–that make for good TV viewing, but may leave their audiences with a wildly inaccurate perception of how law and medicine work, and how they interrelate. I’m also thinking of the frequent “news” reports of good deeds done by hospitals that regularly seem to appear in The Boston Globe on the morning of jury selection in a major malpractice trial. It’s safe to assume that jurors are watching and reading these, and more, and that the impressions gained from these sources will carry into the jury room.
In many states, lawyers would be entitled to question prospective jurors thoroughly about what they’ve seen and read, and what their opinions are about those popular shows and ubiquitous articles. But in Massachusetts, juror voir dire is virtually non-existent, and almost always conducted by judges–who view any questioning not directly related to the case as improper, unnecessary, and a complete waste of time. New Hampshire is a little better, and Rhode Island is much better, allowing lawyers to ask the questions, and permitting inquiry on a broader range of topics. Without this type of questioning, there are undoubtedly jurors seated whose views are influenced by what they’ve seen and read, in ways lawyers can’t even imagine.
For this reason, it’s important for lawyers to keep abreast of the popular media that might relate to a case being tried. The first step in combatting this influence is to be aware that it exists–either by watching and reading, or by getting reports and impressions from family, friends and clients. This is even more important during trial–a time when most lawyers are so busy with preparation for the next day that normal viewing and reading habits are abandoned. Yet the media onslaught marches on–and when Dr. House solved a case very similar to the one I was trying the night before my closing argument, I was pretty glad someone told me about it!
With that awareness, lawyers can make subtle and not-so-subtle references and comparisons to help the jurors recognize that what they may have seen or heard doesn’t relate to the case at hand. In extreme cases, it might even be necessary to ask the judge to inquire whether jurors saw or read a particularly misleading program or article–always weighing the possibility that the judge’s question may send four jurors rushing for their iPhones to see what they’ve missed!
It’s always important to be mindful of the world in which our jurors live, and the popular media is an important part of that world. We as trial lawyers ignore it at our peril.