The complaint lawyers most often hear from jurors is that there is too much repetition during trial. Lawyers are often guilty of repeating the same point over and over, long after the jury has heard and understood it. But what lawyers don’t usually realize is how much information the jurors don’t have–and what they do to fill in the gaps. Making an effort to see the evidence through the fresh eyes of the jury can help trial lawyers present a case more effectively.
Last week, I had the honor of joining a group of lawyers from around the country in Reno, Nevada, to help young lawyers develop their skills in an area we all hope is not a dying art: trial practice. Each year, I truly enjoy seeing the students improve through the week, but the highlight of the program is the opportunity to watch a jury deliberate.
On the last day, the students try a case to a jury of real Washoe County citizens, who fulfill their jury service requirement by spending the day at the National Judicial Center, helping young lawyers gain experience that is increasingly difficult to find as the number of trials nationwide continues to decline. Once the mini-trial (jury selection, opening statements, six witnesses, and closing arguments in about six hours) is completed, two different juries retire to their respective jury rooms, and the lawyers can watch their deliberations on closed-circuit TV.
The experience is at once reassuring, educational and horrifying. Reassuring, because even though they know they are not discussing a real case, the jurors take it very seriously–as I believe most juries do. Educational, because it offers lawyers an opportunity they never get–to see the group dynamics in action. And horrifying, because it shows how many issues lawyers miss, how many questions jurors have that go unanswered by the evidence.
Predictably, the lack of answers does not prevent the jurors from talking about an issue, or even from speculating about the missing information, despite the judge’s instructions not to do so. With Google and Wikipedia just a few keystrokes away, most of us are used to finding answers to obscure questions–and getting the information instantly.
The case that our students try involves a young boy who claims that he suffered a brain injury as a result of excessive forces on an amusement park roller coaster. Although modeled on a case that was actually tried in Texas many years ago, the facts have been modified and simplified for teaching purposes.
Every year as I watch the deliberations, I am astounded by the questions the jurors discuss that were simply not part of the evidence at trial: why only the boy’s father and not his mother testified (we only have so much time); whether the park or the government sets the height requirement for the ride (the park, a fact the students knew but failed to point out); what type of disclaimers or release language appeared on the back of the admission ticket (we don’t have that information, and neither side even mentioned the ticket).
There are several important lessons here. One is that lawyers must try to put themselves in the jurors’ position, and provide any available information to give them a full picture of relevant events. Sometimes lawyers omit a fact because they know it’s not important–but the jury may not know the fact doesn’t matter and may wonder about it, or even violate the court’s instructions by trying to find the answer from another source. Better to explain that a witness has no pertinent knowledge, or that his version of events is the same as another witness’s–even by having the witness say so briefly–than to have the jury wondering why a certain witness wasn’t called.
If a piece of information isn’t available or is something the jurors are not permitted to hear, maybe we should just tell them, rather than ignore it completely and encourage either speculation or independent investigation. For example, all lawyers know that whether a defendant has been sued before is irrelevant and inadmissible–the legal principle being that we are each judged by our conduct on the occasion in question, not on whether we are habitually careless or negligent. Yet time after time, I’ve heard jurors say that, since they didn’t hear that a defendant had been sued before, they assumed that he hadn’t and that they didn’t want to punish a “first-timer.” In fact, even if a defendant had been sued and found liable a dozen times, the jury wouldn’t ever hear about it.
And finally, we need to expand the current trend toward allowing jurors to ask questions because it provides a legal avenue for jurors to get information that they think they might need to make a decision. In Massachusetts, the judge has the discretion to allow jurors to ask questions, and to establish a procedure to take and handle those questions. Even if the answer to a juror’s question only shows that juror that the answer doesn’t matter, the jury’s deliberations have been facilitated and focused.