Appreciate Your Juries
“We wanted to make sure he was the right person....We took this very seriously.”
–Juror Sharae Bacon at conclusion of Chandra Levy murder trial, The Washington Post, Nov. 23, 2010
The ten-day trial of the Chandra Levy murder captivated Americans just as much as her disappearance had. The story had all the drama of a best-selling crime novel, after all—the beautiful and ambitious intern; the love affair with a powerful congressman; her disappearance one spring morning; the discovery—a year later—of her remains on a deserted hillside; and then the identification of a suspect—eight years later—who had attacked two other female joggers in the same area at the same time Levy disappeared. The case triggered not only media frenzy, but also heartfelt outpourings of compassion for the bereaved family.
As such, the trial of Levy’s murderer inspired the jurors to do their best work. “You’re dealing with somebody’s life, with two peoples’ lives,” juror Emily Grinstead told CBS News at the end of the trial. “I don’t take that lightly. I take it very, very seriously.” Added Linda Norton, another juror at the trial, “We cannot bring back [Susan Levy’s] daughter and nobody here can do anything to bring back her daughter....We did the best we could with the evidence we were given to come to the conclusion of this case.”
Given the stakes, this level of jury involvement is probably not surprising. But what is amazing is that it is not only the high-profile cases where jurors work so hard to get it right. Jurors are consistently engaged in trials dealing with everything from the inner workings of microchips to insurance fraud, mergers and acquisitions, and software for government agencies—not the kinds of things toward which most lay people gravitate. True, jurors do complain about jury duty, yet most jurors also believe that they have a personal stake in ensuring that the system works. As such, jurors generally apply the law as well as they can to the facts, as best they understand those facts. They truly believe the truth is out there; that they can find it; and they work very hard to find it.
An Odd System
Let me say what should already be obvious, “I have incredible respect for jurors!” While it’s trendy to criticize the jury system (colleagues from other countries rank our system somewhere between quaintly ridiculous and fatally flawed), after witnessing hundreds of jury trials, I have found it easy to become one of its biggest fans. In fact, admiration continues to grow when thinking about what an odd system we have—the bringing together of twelve people who have never met each other and appear to have little in common; asking that they decide matters having to do with guilt, liability, state of mind, and often, complex fact patterns, finance, or the human heart; and requiring that they weigh presentations by professional advocates whose very job is to convince the jurors of one version of the truth or another.
That is no small order—yet, remarkably, in the vast majority of cases this diverse group not only reaches a verdict, they do so either unanimously or by a statutorily mandated supermajority (e.g., nine or ten out of twelve).
At the beginning and at the end of each trial, we usually take time to thank our jurors. Unfortunately, our actions in between are usually inconsistent with these expressions of gratitude. More often than not, we unnecessarily waste their time, by forcing jurors to sit through badly edited and poorly structured trials, demanding that they make crucial decisions with inadequate information, failing to provide them with the necessary tools to understand key testimony, and boring them beyond the point of numbness.
There is actually a better way. One of the biggest thank you gifts jurors can receive is perspective—perspective on who is who, what is what, and who did what to whom, when, why and how. Perspective is more than listing out facts. It is giving jurors both the big picture and relevant detail. It is using a thematic glue to hold the facts together. It is drawing connection between facts or groups of facts. And, it is understanding and articulating what really motivated the key parties. Lawyers who develop perspective know what matters; they give jurors what they want: to understand what the case is really about and to reach a verdict after having to consider only those facts that really matter.
Without a doubt, developing and figuring out ways to convey perspective takes time. In fact, it takes a lot of time. And that is because developing perspective requires making hard choices in order to make trial estimates shorter, not longer; witness lists have fewer names, not more; the number of exhibits decrease, not increase. It requires finding ways to teach, so that jurors can understand new and complicated material. And it pushes you to exercise discipline, so that the story you tell stresses one or two great facts, not mounds of merely good ones. Developing perspective also involves judicious decisions about just which issues to flesh out for jurors and how. This isn’t easy—especially when dealing with clients and witnesses who know a tremendous amount about the matter at hand and so are tempted to explain too little (“but everybody knows that...”) or too much (“but this is really important!”).
As an example, an economist was once asked to make his presentation more understandable or “juror friendly.” He responded with a series of regression formulas and references to both standard deviations and “varying confidence intervals.” When it was suggested the presentation be simplified even more, he expressed sincere concern that he might be perceived as talking down to the jurors.
How to Provide Perspective
How does an attorney provide perspective on cases that may span years and entail boxes and boxes of evidence? A few tips:
1. Understand your case: It should go without saying, but the truth is, attorneys don’t always take the time to really, truly understand the ins, outs, and in-betweens of their cases. That doesn’t just involve memorizing facts and case law, by the way. It involves doing what is called passive Mental Mining®, where you let your subconscious process the information so that new insights, connections and strategies can be developed. Once completed, you then need to engage in active Mental Mining, where you test ideas on family, friends and colleagues and (if the resources are available) in a focus group that approximates the jury pool.
2. Eliminate the extraneous: As you review materials, weed out anything that doesn’t advance your position or that is inconsistent with basic case theory or themes. Not everything that hurts is worth fighting; not everything that helps is worth raising.
3. Teach your jurors well: Remember those teachers you had who were so enthusiastic, such great story-tellers, that they could make any subject interesting? As you prepare the case, think about how you might emulate their techniques: whether it was the personal stories they told, the way they enlivened what seemed like dry scientific or historical facts, or the respect they showed for the learners (in your case, jurors).
4. Anticipate problems and provide solutions: Every case has problems; ignoring them and hoping that jurors will too is one of the biggest disservices you can provide your finders of fact. Acknowledge the problems and provide an appropriate acknowledgment and honest response. If a mea culpa is due, encourage your client to offer it, accept responsibility and then concentrate on areas where there are legitimate defenses.
Clearly, developing perspective—both for yourself and your jurors—takes more time, more thought and more work. But in the end, it is worth it, because you will be truly helping jurors understand and become engaged in the case—and you will be truly thanking them for their efforts to come to agreement on the difficult matters assigned to them.
This article is reprinted with permission from the January 10, 2011 issue of The Recorder. © The Recorder, ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
Appeared in The Recorder
January 10, 2011