August 2002

The Powerful and  Mysterious American Jury: Common Misunderstandings by Attorneys, Judges and the Public 

by Joyce E. Tsongas and Arthur D. Monson

Each year, jury verdicts decide civil cases with billions of dollars at stake and criminal cases with profound life-and-death consequences. Fear of an adverse verdict often is a significant factor in mediation outcomes and plea bargains. It has become common for corporations and individuals to apply the "What would a jury think?" test to everyday business and personal decisions. Foreign parties involved in our justice system regard American juries with a mixture of respect, curiosity and fear.

For good reason, American juries have been shrouded in secrecy by the legal process. Juries deliberate behind closed doors. We don't speak to jurors in the courthouse during trial, and in U.S. District Court and some state courts, that prohibition also extends to post-trial contact with jurors.

Juries and jury decision-making have been studied by experts hoping to unlock the secrets to successful jury persuasion. CLE programs and the media often feature jurors from a high-profile case providing an after-the-fact peek into the jury room. Attorneys, the parties and witnesses struggle to understand what matters to jurors, how they will evaluate specific evidence and arguments, and how that evaluation will lead jurors to a group verdict. The mysteries surrounding jury selection, jury decision-making and jury verdicts confound trial lawyers, judges and the general public. Social scientists have studied how juries understand the law, use evidence, communicate with each other during deliberations, and reach their verdicts.

The trial consulting work we have done over the last 25 years has been built on that base of social-science research. Working with trial lawyers across Washington has led to numerous conversations about juries with several superior court judges and U.S. district court judges. We have conducted over 1,000 mock juries and focus groups in Washington and have debriefed jurors after trial in dozens of cases. Finally, we have served on several juries that deliberated to verdicts in both civil and criminal cases. As our knowledge about juries has grown, we have become aware of several common misunderstandings and false assumptions that attorneys, judges and the general public hold regarding juries and how they work.

Some of the most common questions asked about potential jurors are: "Do I want men or women on my jury? Do I want white-collar or blue-collar workers? Do I want younger or older jurors?" Each of these questions reflects the inaccurate assumption that demographics provide reliable knowledge about whether a potential juror may harbor negative bias, attitudes or opinions about your case or clients.

Nearly all social-science researchers agree, and our own jury research demonstrates, that demographics generally are not reliable indicators of potential juror bias. In most situations, humans are much too complex to be characterized by age, sex or race. Exercising peremptory challenges based on demographics not only creates the potential for legal challenges based on the makeup of the jury, but is ineffective. The experiences, attitudes and opinions of potential jurors are a much more reliable source of information than demographics when evaluating how potential jurors may weigh in on case issues during deliberations.

  When evaluating the potential negative bias of jurors during jury selection, it is most useful to prepare a list of high-risk factors based on case-relevant juror experiences, attitudes and opinions. Demographic factors should take a back seat. The key is to prepare voir dire questions and, if possible, a special juror questionnaire to gather the most reliable information you can to exercise peremptory and cause challenges as effectively as possible.

It is common for trial attorneys and judges to become discouraged about the ability of a typical jury to understand the complex aspects of difficult cases, including product litigation, business contract cases, accounting malpractice, intellectual property, or any other type of litigation involving complex technical issues. It is important to be concerned about explaining complex issues to juries, but it is has been our experience that it is not impossible. Clear case presentation can benefit not only jury decision-making, but judicial decision-making as well.

We have learned from conducting mock trials and debriefing many trial juries that jurors can understand even the most complex case issues. This research has led us to believe juries are capable of understanding the underlying principles and arguments of nearly any case, but only if they are explained clearly and carefully. Indeed, while viewing tapes of mock-trial jury deliberations, attorneys and their clients often express surprise at the acumen of individuals and groups they initially believed, based on demographics, would be incapable of understanding complex arguments or evidence.

When jurors struggle with a difficult concept in a mock trial, the lack of a clear explanation by counsel is usually the reason. When we have an opportunity to revise and retest a case in a second mock trial, we often find improved juror comprehension and enhanced persuasiveness.

A few years ago, we assisted the defendants in Doehring v. Port of Seattle, a discrimination case tried to a defense verdict in King County. One complex issue that had to be simplified was how employees were affected when the port went through a structural reorganization. With the trial team we developed two demonstrative exhibits that explained key concepts in a simple and direct manner. Icons represented the lines of business conducted by the port before and after the re-organization, or demonstrated how employees were or were not affected by the changes.

While individual jurors might be incapable of understanding the evidence in complex cases, jurors working as a group are very good at explaining to and correcting each other while sorting out the evidence as they create a group story in order to reach a verdict based on the evidence.

Several years ago we assisted the defendants in an environmental coverage case, Alcoa v. Admiral Insurance Company, that was tried for three months in U.S. District Court in Seattle. The attorney who represented one of the insurance company defendants in the case was most impressed with the hard work, patience and diligence of the jury, which spent several months deliberating to answer detailed questions on a 398-page verdict form. Questions for the jury revolved around specific contaminants, sites, vessels, policy coverage periods and events that happened as long as 30 years ago.

Demonstrative exhibits can be highly effective in helping to explain difficult concepts. We have seen effective exhibits become the focus of deliberations on complex key issues, and have had many mock jurors and trial jurors comment on how much they were helped by demonstrative exhibits designed to explain difficult concepts. It is not unusual for jurors to ask the court for a demonstrative exhibit used during trial to use in deliberations.

In 1998, we assisted the defense trial team in a civil-rights claim against the city of Wenatchee (Roberson v. Perez and City of Wenatchee) brought by individuals who claimed they were falsely prosecuted for sexual molestation. We developed a time-line to help the jury more clearly understand key issues in a complicated series of events. The timeline was used throughout the trial, and the jury asked to use it during deliberations. Even though the graphic was not allowed into the jury room, it obviously had become an anchor for jurors during the trial, which ended in a defense verdict.

Demonstrative exhibits introduced as evidentiary exhibits during the testimony of expert and fact witnesses can have great impact in the jury room during deliberations, significantly improving juror comprehension and witness credibility.

This opinion, held by many trial attorneys, evidences itself in more subtle ways than many other false assumptions about juries. It is possible to begin trying cases at the age of 30, practice for 20 years, and not notice that you are now very different from most jurors in the venire. Motor-voter registration, one-day/one-trial rules, and more vigorous enforcement of postponement rather than excuse from service have widened the variety and number of jurors serving, and by doing so have widened the differences between trial lawyers and many jurors.

This disconnect between jurors and attorneys can cause difficulties in communication as attorneys try to make their cases clearer and more persuasive. We recently worked with attorneys representing a Washington corporation in a patent case involving complex scientific and intellectual-property issues. One attorney, searching for an analogy to clarify a point, stated: "This process is like making a decision to add a wing on your house to accommodate your nanny." Needless to say, an analogy was developed that was more relevant to jurors.

In an effort to help understand and bridge the gaps between attorneys and jurors, many attorneys use their spouses, cab drivers, friends and others to test their case stories. Presenting your case to a group of jury-eligible people is a substantial step closer to reality and far more reliable than the hit-or-miss method many attorneys use. Mock trials, focus groups and, to some extent, community-attitude surveys can all move you closer to being able to detect communication and strategy problems in your case.

Misunderstanding Four: Judge-Conducted Voir Dire Generally Is Very Helpful to Attorneys

For years, it has been common practice for judges in federal court to conduct some, if not all, voir dire during the jury-selection process. Among the good reasons judges offer for this procedure are inappropriate questioning by attorneys, counsel attempting to give an opening statement, jurors being asked to commit to an opinion about the case, nonproductive use of the court's time, or asking questions unrelated to the case to ingratiate themselves to jurors. We have seen these behaviors on many occasions in both state and federal courts.

When judges ask questions, attorneys are often dissatisfied with the type and quality of information they obtain. Judges tend to focus on less meaningful demographic and experiential information to the exclusion of more meaningful, attitudinal and opinion-based information — a stronger and more reliable indication of negative bias. When case-relevant juror bias is discovered, judges often ask jurors to do the impossible and disregard their strong personal experiences, attitudes and opinions.

There is a middle ground that serves attorneys well, while limiting questioning by attorneys that judges find inappropriate. A first step is to improve the quality of the voir dire conducted by judges. The late Richard Bilby, former presiding federal judge in Arizona, had a reputation among attorneys in his district for conducting such thorough voir dire that attorneys seldom had many questions after he was finished. He asked extensive questions about jurors' case-relevant life experiences, as well as attitudinal questions that revealed negative biases of concern to both sides. Several years ago, we assisted Judge Bilby in developing and conducting a voir dire training program for judges in his district.

For judges who traditionally have not allowed any attorney-conducted voir dire, a second remedy is to allow attorneys to participate in voir dire for a limited time, within carefully defined limits. Even a 15-minute voir dire of a venire by attorneys can yield useful information.

Several years ago, our firm surveyed approximately 1,500 former jurors from 13 of the 15 districts in the 9th Circuit by written questionnaire to measure their attitudes about the trial process. Survey topics included the experience of jury service, litigants and legal issues, the process of jury selection, preparation for jury service, effectiveness of judges and attorneys, jury instructions and the deliberation process. Seventy-five percent of the questionnaires were returned and the results analyzed for this study.

Almost 70 percent of the 1,300 jurors responding to the survey felt that voir dire gave an accurate picture of who they were, but nearly two-thirds of jurors said that attorneys would have gained a better idea of their attitudes if the attorneys had been allowed to ask them questions. However frustrating they might be, the limits courts impose on voir dire often serve attorneys well, as most jurors understand when they are being argued with, pandered to, or asked inappropriate or irrelevant personal questions, and many have limited tolerance for those techniques.

One study of multiple juries after trial found that most jurors were quite accepting of the jury-selection process, but some felt they had served with jurors who should not have been on their panel because of strong bias directly related to the case. While watching mock juries deliberate, we often see how frustrated fellow jurors can become when a juror is so strongly biased that it gets in the way of a meaningful exchange of ideas.

Jurors appreciate good, relevant voir dire. They understand why some jurors should not serve, and find it difficult, unpleasant and frustrating to serve on a jury with a strongly biased, uncompromising juror not focused on the evidence. They appreciate voir dire that identifies those jurors, and a process by the court and the attorneys that eliminates obstreperous jurors.

The impact of portrayal by the media of both fictional and real trials has been increasingly evident during the past decade, coinciding with media-circus trials, highly publicized verdicts such as the McDonald's coffee case, and the rise of Court TV and reality court shows like "Judge Judy" and "The People's Court." When asked how their experience at trial differed from their expectations before serving, jurors most often mention the amount of waiting they had to do, boredom, perceived disorganization of the trial process, the many things that happen offstage during a trial, things the jury is not allowed to see or hear, developing relationships among members of a jury, and the process of compromise leading to a group verdict. Jurors are aware of how different their actual trial is from television and movies. Movie and television trials last for minutes — not hours, days or weeks. They are tightly edited, include breaks for advertising on television, focus only on the dramatic peaks and smoking-gun evidence, simplify the facts, avoid complex or technical material, and, in dramatized versions, are presented by professional actors. All are major factors in setting the expectation of jurors as they serve in real trials.

Jurors come to trial with high expectations for witnesses, evidence and attorneys. In what ways do these expectations affect juror evaluation of the actual cases they encounter? First, since most of the trials they see presented in the media are criminal, many jurors bring the terminology and legal standards of a criminal trial in civil trials. Many research and trial jurors refer to plaintiffs as "the prosecution," even after the trial or research project is over. Even after instruction, some jurors attempt to apply the criminal burden of proof in a civil case, coming to trial with expectations based in part on the format used by news media. They sometimes find the necessary tedium of building a case boring and irrelevant, and express frustration with lawyers not cutting to the chase. Some are reluctant to give inference much weight, or to reach a verdict without clear and direct evidence. Jury expectations are set in part by the fascinating cases that regularly fill the press and media.

Jurors often speculate about irrelevant facts or inadmissible evidence. To some extent this may arise from the practice of media coverage in actual trials, which puts no boundaries on what it tells the public in stories about trials. In criminal trials, jurors almost always ask about previous criminal records, and in civil trials they want to hear witnesses testify about attorneys' fees, insurance coverage, and other inadmissible collateral-source issues.

What can a trial attorney do in response to juror expectations developed by news media and fictional portrayal of trials?

Meet juror expectations when possible. The techniques used by popular news and entertainment media were developed because they grab, hold and persuade the audience — the same audience that serves on a jury. When allowable, many of these techniques can be useful at trial. For example, you might:

•  Move your case along at a lively pace.

•  Develop compelling themes that summarize your legal and factual case clearly and succinctly.

•  Consciously build the evidence and themes to meet expectations.

• Connect the case to the experience and knowledge of the jurors.

•  Avoid unnecessary repetition.

•  Prepare fact witnesses carefully, and keep them focused and on point.

•  Work with expert witnesses to be certain their testimony is not just accurate and conclusive, but also compelling.

•  Use visual evidence and demonstrative exhibits to summarize your case and emphasize important evidence, concepts and themes.

•  Set trial-specific expectations and meet them. Recognize when juror expectations are being violated.

•  Explain what you are doing or saying with particular care when it deviates from juror expectations.

Over time, it is inevitable that understanding in this area will advance as attorneys, judges, social scientists and the general public work together to better understand the jury decision-making process.