20 Comments

Ted, do you mean to imply (and if you did not, my apologies) that the Plaintiffs’ Bar is the exclsuive patron of jury consultants and jury focus groups?

[TF: Not in the slightest.]

Ted,

Thanks for the link.

Yes, Tom Kline will be a contributor. Right now he’s in the middle of litigation and will be posting shortly.

Thanks for mentioning a link about using focus groups to test out how to present evidence in a light that people will believe.

I don’t think there’s anything manipulative about putting the facts of a case in a good and believable light.

Dave

“I don’t think there’s anything manipulative about putting the facts of a case in a good and believable light.”

Nor does Ted… nor did Ted SAY that.

What he was quite clearly posting on was the use of profiling to select the jury, which has essentially nothing to do with “putting the facts of a case in a good and believable light.”

He was also quite clearly posting about “jury manipulation” (not a real jury, and not Ted’s exact words) to influence settlement discussions, such as having deliberation video of a focus group, which can be easily arranged to appear representative of the district in the question without actually being anything like the district in question.

In short, you’re changing the subject. There’s usually a REASON when people do that…

Deoxy,

Thanks for the feedback. Actually, “manipulate jury selection and settlement discussions” was Ted’s words.

What you say that Ted was ‘quite clearly posting on’ was not part of the post when I made the Comment.

I’m not certain I understand when you talk about ‘jury manipulation’ but not a real jury and not those words. I don’t know what that means.

Actually, profiling and demographics make a difference. Both sides are allowed to strick jurors that they don’t want.

It’s very helpful to know which jurors that you want to strike. The defense has their own strikes too. There’s nothing underhanded about this at all.

Also, every mediation I’ve gone to, the defense attorney and insurance adjuster have pointed out that the clip was only a 5-10 clip, that they didn’t know the circumstances it was produced in…

It’s almost like the insurance companies do this for a living and are familiar with the ins and outs and more often than not hire talented attorneys on their side as well.

This one’s a case of pari delicto (equal fault) for the plaintiff bar and defense bar. The cold fact is that demographics matter, and every trial attorney — short, tall, black, Russian, peacenik, military — knows it. Men over 40 making over 50 ARE more likely to side against a plaintiff. And so on. What gets me is that plaintiffs and criminal defendants can “get righteous” about prosecution and civil defense exclusions (see the Batson challenge), while prosecutors and civil defenders can’t (though there are reverse Batsons). They’re both after the same thing: a favorable jury. What’s the moral difference between excluding someone on demographic grounds and KEEPING them on demographic grounds? The Batson decision does not address this, if I recall. Does a litigant have a “right” to be tried by a jury matching his own demographics? The law disowns this by declaration, but it would seem to be the logical conclusion.

Ultimately what it says about the justice system is that facts, and to a lesser extent, witness credibility, often take a backseat to the vagaries of demographics. What else explains the heavy investment in jury strategy and consulting? Can anyone present the serious case that this enterprise makes for MORE FACTUALLY ACCURATE jury decisions?

“It’s almost like the insurance companies do this for a living and are familiar with the ins and outs and more often than not hire talented attorneys on their side as well.”

They certainly do – and they certainly manipulate the system to thir own advantage whenever possible.

So, when the defense in one trial manages to manipulate the system to get an unjust result in the DEFENSE’s favor, this is offset because the plaintiff in another case was able to manipulate th system to get an unfair result in the PLAINTIFF’s favor?

That’s what you’re saying – it’s fair because the manipulations balance out in the end, because both sides can do it.

As to knowing whom to strike… that’s wrong on so many levels, it’s hard to know where to start.

For lack of time, let’s just consider one thing: let us assume that pedophilia is considerd by society to b wrong, and by “society”, I mean 99% of the people living in it. if you managed to get a jury of all people who thought that pdophilia was just fin and dandy and therefore let the accused off (assuming evidence was avoerwhelming), is that anything resembling justice?

That is, essentially, what you are advocating. Forget what attorneys are “allowed” to do, and try to think about what is fair and just for a moment.

When a black person can get a jury of 10+ black people in an area where blacks make up less than 10% of the population, well, I think we safely say something is wrong with the system. That’s just an (semi-famous) example, and would be just as wrong with white people.

(And yes, before you get your panties in a wad, those were criminal case examples, not tort; unless jury selection is massively different, they apply equally well in both cases.)

I do not disagree with the fundamental premise of your blog. But using jury consultants and focus groups is somehow unjust? Please. You are manufacturing injustice. For a man with a hammer, everything is a nail.

Ron Miller

P.S. – Here’s an article I wrote on focus groups last week you can attack too. http://www.marylandinjurylawyerblog.com/2006/09/personal_injury_lawyers_use_of.html

While lawyers and those with extensive experience with litigation understand the extent to which focus groups and jury consultants and voir dire are used to shape juries, this is often a surprise to the lay public. (Remember the cross-examination of Skilling over his jury consultant?)

Both plaintiffs and defense counsel use these mechanisms. But it’s the trial bar that criticizes reformers for their supposed disrespect for the sacrosanct jury system, when the jury system is not the jury system that Americans imagine it to be. The twelve (or as few as six) people on a civil jury have been hand-selected, frequently to exclude people who hold common-sense views about the world at large, frequently to exclude the educated and gainfully employed, especially in longer trials.

Because so much of American public policy is entrusted to juries, it’s worth educating the public at large what goes into jury selection. People who see the sausage being made might understand that the jury system is a poor means to formulate public policy.

People aren’t stupid, yet it’s possible to construct a jury through voir dire and a friendly judge that will award $179,000 to a college student that falls out of bed. That wouldn’t happen if the jury system was as representative of the population as trial-lawyer propaganda makes it out to be.

We are dealing with human beings. There are people who are bound to be pro plainitff and people bound to be pro defense. Let me tell you, I think this blog indicates you would be the latter. The purpose of jury selection is to be able to weed out both. Remember, both sides have strikes. I just can’t figure out why you would take a shot at a great blog post on picking jurors. But listen, we are not going to ever get rid of outrageous verdicts on both sides. Welcome to a system that involves human beings. But you focus on the 1% to the exclusion of the 99%.

How did I take a shot? I said the post was “revealing,” which is consistent with your view that it’s “great.” (An opaque post presumably wouldn’t be a great post.) I linked to it, and people can take their own judgments from it.

More than 1% of juries make mistakes (often with the cooperation and encouragement of judges), and, because of the possibility of unbounded damages, a mistake by a pro-plaintiff jury can have a bigger effect than a hundred juries that get it right. We’ve covered such examples in the past: it does Ford no good to win twelve straight rollover cases when the thirteenth jury awards several hundred million dollars in damages.

The system does involve human beings, and human beings make mistakes. I seek to improve the system to minimize the damage mistakes do, and to focus the system on what it does best, rather than what it does worst.

Ron,

Your statement boils down to this:

There will always be airplain crashes, so we shouldn’t worry about why they happen or how to mak them happen less often.

You’ll excuse me if I don’t go along with that.

As to your latter opinions, I disagree but I appreciate where you are coming from. But as to whether you were taking a shot at the blog with your “revealing” comment, I don’t think you would really deny the tone and tenor of your post. I think pretending you offered it to your readers in an objective way is obviously disingenuous. Again, I appreciate your general point of view even though I don’t share it because I think juror awards are generally fair in this country. I reject paternalist notions that the elite know more about what is fair then regular people (like or not, that is what jurors are). My only point and entering this debate is that Dave Swanner, a guy who is out seeking justice for his clients as much as any lawyer is, wrote a great blog post and you wrote a response suggesting that using focus groups was manipulating the system. I respectfully disagree.

Wow. Good discussion in the Comments.

To answer Deoxy’s response. My main goal in a jury is not to have any fringe elements from either side. If I had a group of people that were middle fo the road and had good common sense, I would be very happy with that.

Personally, I don’t look to create a situation where I have an unrepresentative / unfair jury. I also don’t want an unfair jury against me.

I understand Ted’s position for consistency. I also personally believe that the jury system is one of the lynchpins of our country and what makes our country better than the rest.

I’ll say it explicitly: Swanner isn’t doing anything “wrong” in the sense of doing something lawyers aren’t supposed to do. It’s what all lawyers do. This is just a case where the scandal isn’t that someone’s breaking the rules, but that the rules contemplate and condone the conduct at issue. The system creates incentives for Swanner to use focus groups and shade a jury in a particular way; we shouldn’t be surprised that he does, but we should question whether that’s how we want to run a judicial system. It’s an important piece of information that every-day people don’t have when they’re being lectured “that the jury system is one of the lynchpins of our country.”

I’m happy to have a jury system resolve basic questions of fact: Did the accused defendant rob the bank/sell the cocaine/shoot the victim? The idea that a lay jury given a game-show presentation is the optimal way to decide complex questions of science or engineering, however, strikes me as questionable. We don’t let juries second-guess executive business or political decisions. Why do we let them second-guess medical or engineering decisions?

The original post makes clear that the information about the group of potential jurors “over-40 men making more than $50,000 per year” was going to be used if possible to guide peremptory challenges.

Suppose all other demographic categories of jurors respond to the argument, except this one. So the one side in this case can simply exclude jurors from the specific group indicated, and gain a significant advantage.

The other side cannot use the same information, as there is no other group to target for exclusion.

In other words the information enables one side over the other. It is not a plaintiff vs. defense issue, it could be the other way the next time.

Maybe the excluded group brings an important perspective to the case that others do not, and that is why their exclusion makes a difference.

I think we need a countervailing feature of jury selection: the ability of one side to “protect” a juror from exclusion by the other side. In other words, instead of choosing to exclude a juror, counsel could use that challenge to select a juror to not be excluded by the other side.

Then, the information could cut both ways.

“We don’t let juries second-guess executive business or political decisions. Why do we let them second-guess medical or engineering decisions?”

No one is asking for a jury to make these decisions. I think if experts argued the points of view to them they could make a good call. I note however that we do vote on political issue in free elections. I think the “juries can’t figure it out” logic is plain wrong. Alan Deroshwitz (sp?) famously said he would rather have the first 9 names in the phone book make the calls the Supreme Court makes. I don’t quite agree but I get his point.

[TF: juries do second-guess medical and engineering decisions; juries could easily be asked to second-guess business judgment or political decisions in liability trials, but we grant immunity to the actors who would be judged in such affairs.]

Deoxy, your airplane analogy is a false one. Here’s a better one: you can fly by airplane or you can fly by transportation mode B. Airplane is not perfect, you may die in flight. But, it is a lot saver than mode B (the alternative). Which is your choice?

Ted wrote “We don’t let juries second-guess executive business or political decisions”.

Actually we do. In business they’re called shareholder meetings.

In politics they’re called elections.

My .02.

Good discussion. I don’t agree with all of the viewpoints, but still impressed with the civility of the discussion and people presenting ideas instead of namecalling. Thanks for the post and the comments, Ted.

Juries are not analogous to shareholder meetings or elections. Shareholder meetings and other elections consist of a vote of every stakeholder rather than a hand-picked set of six or twelve people; moreover, those decisions are on a macroscale (who will be a director/president/senator?), not a microscale (should we invest in broadband? should we fund an Alaskan bridge?).

If we have a mass referendum and ban smoking, I don’t think it would be a wise policy choice, but it would bother me significantly less than if six jurors decide to bankrupt the industry and give its money to a group of attorneys who used junk economics to justify a $100-billion award—especially since if that jury votes no, the attorneys are just going to try again with hundreds of other juries in a game of Russian roulette.

I’d rather have 6 jurors decide whether to fund the Bridge to Nowhere over the U.S. Senate, believe me.

I’m out of here, folks, it has been great. Ted, I disagree with the premise of your blog but I’m glad you are out there expressing your views. Makes the world a better place. Thanks to all.
– Ron Miller
http://www.marylandinjurylawyerblog.com