Wednesday, December 17, 2014

Use Smartphones to Get Smarter About Your Jury

If you’ve ever been 20 minutes into a two-hour errand run and had anxiety over leaving your cell phone at home, maybe even turning the car around and going home to get it, then you’re fully aware of how integral these devices have become in our daily lives.  This is a good thing in the sense that we are better connected, have access to virtually unlimited information and, for the navigationally challenged, can get turn-by-turn driving directions in seconds.

However, when it comes to the courtroom, this reliance on our phones, tablets and wonder-devices presents a unique, and troubling, challenge.  In prior newsletters we’ve covered the temptations jurors face to research terms or even people on the Internet during trial – even despite specific instructions from a judge not to.  In the old days, the court could just confiscate all newspapers from the deliberation room, but with the sheer amount of information and research tools available to jurors with the touch of a button, the perceived acceptance of using these devices in a courtroom – just as people would in the course of their daily lives – has become more commonplace.

Recently, NFL defensive tackle Darnell Dockett made the news for live-tweeting, and mocking, his jury duty experience.  The New York Post characterized his anti-jury-duty tweets as “hilarious,” supporting the general impression among many people that this is acceptable behavior for a potential, or actual, juror.  

The article doesn’t state whether the judge specifically banned the use of devices, but the article did note, “Dockett even claimed to continue to tweet on his iPhone after the guards took his Android” – further demonstrating some people simply don’t see a problem with this activity, or openly defying judges’ orders.

But what happens when judges themselves fall prey to these temptations?  Last month, a Detroit judge got in hot water when she was caught tweeting during a murder trial.  The day the defendant’s close friend testified, she tweeted, “A true Friend will support you at your worst and NEVER again mention when you become your best.”

The judge clarified the jury was out of the courtroom at the time, but it just goes to show how commonplace social media has become in most peoples’ lives and in the courtroom. 

And you and your trial team should use it to your advantage.

First, you would be amazed what some people put out there in the public, whether via Facebook, Twitter or comments on news sites.  When we’re called to consult on a trial, we start by conducting thorough social media audits on the jury panel to see if there is any information that can help determine whether certain jurors will be helpful or detrimental to the case.  Political leanings, recreational activity, education level, viewpoints on current events, homeownership, etc. can all tell you something about a potential juror – and sometimes this information takes very little effort to gather.

More importantly, we continue to conduct ongoing monitoring of their online lives to ensure they are complying with court orders and are not discussing the trial.  On a surprising number of occasions we have had unfavorable jurors kicked off of the jury for openly defying orders not to discuss the trial on social media. 

Finally, don’t assume just because a judge gives jurors specific instructions about not researching aspects of the trial or discussing the proceedings on social media, they will listen.  In fact, you should operate under the assumption they will give into smartphone temptation, and ensure time is taken to address likely predispositions and potential misconceptions they might encounter online, and educate them through expert testimony in a way that benefits your case.  

If you would like to know more about how we can use technology and social media to benefit your case, or how to best educate jurors about complex issues, please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.  

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This will be our last issue of Things in 2014. The newsletters will resume January 7, 2015. Happy holidays, and thank you for your continued support! We look forward to working with you in the new year.

Wednesday, December 10, 2014

Debunking Sham Science in the Courtroom

It’s no secret attorneys can usually find an expert witness to say just about anything they want, but this becomes particularly problematic when that expert is testifying regarding complicated scientific or medical issues about which lay jurors have no knowledge, background or understanding.  An opposing expert may be peddling snake oil while yours has medical literature on his or her side, but how is a jury supposed to know who’s the fraud and who’s the real thing?
 
We’ve noticed the issue of sham science in the courtroom particularly rears its head in relation to neuroscience – perhaps no surprise given the complexity of the field.  In fact, scholarly research has found that specious neuroscience can be used to dupe people who have no background in the field – a group that would include most jurors.
 
In our experience, the use of brain scans is an area where jurors are particularly vulnerable to experts willing to mislead.  Technologies such as SPECT scans and functional MRIs (fMRI) produce colorful, compelling visual images that unscrupulous experts can manipulate into showing whatever they want them to show.  These images take on added significance among jurors accustomed to such high-tech forensic presentations from TV shows such as CSI.


Based on recent trial experiences, we believe the best tactic to combat such sham science is to use your own experts to unmask exactly what the opposing expert is doing – taking them “behind the curtain,” so to speak.  It is not enough to simply have your experts offer a competing interpretation of a brain scan, because it can be too difficult for lay jurors to sort through complicated scientific testimony and figure out who is right.  Instead, we recommend unleashing your expert to attack his or her counterpart’s methodology. 
 
For example, during a recent trial involving alleged brain damage, the plaintiff’s neuroscience expert relied on a bright, multicolored SPECT scan to highlight areas of supposed damage.  Based on exit interviews, we know jurors found this very compelling – that is, until they heard from the defense expert.  The defense expert testified how the plaintiff expert’s color scale used is intended not to diagnose areas of brain damage but only to highlight previously known damage for presentation purposes (such as at conferences or in medical literature) because it uses bright colors to make extremely small differences look more dramatic.  In other words, it was a complete misuse of technology intended to mislead the jury.  Jurors told us after the trial that the defense expert “destroyed” the plaintiff on this issue.
 
Although jurors may not be neuroscience experts, they’re smarter than we often give them credit for.  They’re capable of understanding how they’re being misled by sham science, but it’s up to you to show them exactly how that’s happening rather than just asking them to believe your expert’s word instead of the plaintiff’s.
 
If you have a case where sham science comes into play, we’d love to help you figure out how to address it.  Contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net to find out how we can help.

Wednesday, October 8, 2014

Bring Clarity, Not Confusion, to the Courtroom


Contusions.  Are they hair?  Bones?  Perhaps another name for wisdom teeth?

The Onion posted an amusing article Monday about a juror who spent an entire trial confused about the meaning of the word “contusion” because he was too embarrassed to ask – and no one bothered to explain it.  Unfortunately, it’s funnier because it’s true.  Far too often, attorneys and witnesses throw around jargon in the courtroom without bothering to explain basic terms.  It goes along with knowing your case, or your line of work, far too well and assuming others have the same base of knowledge that you do. 

These assumptions can prove problematic, and could potentially derail your entire case.  There’s the minor issues, such as the length of a full-term pregnancy, and the major ones, like clearly defining that a doctor is an independent contractor rather than a hospital employee.

It sometimes shocks clients at our focus groups that laypeople don’t know these things, and these participants’ opinions then get jettisoned because they’re uninformed.  But it’s not about whether a juror is smart or dumb; IQ and education level don’t have any impact on whether a juror automatically knows a contusion is just a fancy word for bruise.

Defining terms isn’t about “dumbing down” your case (and believe us, jurors can sense when they’re being condescended to and will not be happy).  It’s about making sure you’re in control of educating the jury about key terms and issues.  Evaluating your case with a representative group of jurors, either in person or online, can help you figure out potential areas of confusion.  Every report we produce includes a section on jurors’ verbatim questions, and making sure your trial team proactively answers those questions will give your side the courtroom advantage.

To learn more about educating your jury, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

  

Wednesday, October 1, 2014

A Focused Jury is a Better Jury


It goes without saying that putting life on hold for weeks to serve as a trial juror is less than convenient for most people.  Whether it’s work, family or both, almost everyone has something they should be doing – or at least would rather be doing – instead of sitting in a courthouse for several hours a day hearing about emotionally draining issues.

That’s the position in which our court system places jurors, yet oftentimes we do nothing except pay lip service to their inconvenience and sacrifice.  Too often, the result is preoccupied trial jurors with multiple other demands for their time and attention.  Obviously, distracted jurors are not in an ideal place to pay attention and come to a rational, logical conclusion.

So what can be done, short of limiting juries to retirees?  Although there is no ideal solution, several states and jurisdictions are starting to address the problem.  Their solutions range from a Wisconsin juror pamphlet recommending yoga, meditation and exercise to hotlines that connect stressed-out jurors with mental-health professionals.

That’s all well and good, but in our experience there are things you can do – with the cooperation of the judge and opposing counsel – to help make the burden of jury service more manageable – and help your jury remain engaged and pay attention to your case.
  • Flexible scheduling – We’ve found from interviewing jurors post-trial that it is enormously helpful for them to have some time away from court during the week.  Whether it’s one day off per week or having shorter breaks and stopping every day in the early afternoon, this allows jurors to pick up the kids from school, squeeze in a shift at work or at least keep on top of what’s happening at the office. 
  • Time limits on witnesses – In our experience there are few witnesses who require a full day of testimony, and most witnesses who take that long do so because of plodding, repetitive examinations by counsel.  Jurors hate having their time wasted, and lawyers aren’t doing themselves any favors with overly long witnesses because jurors will simply get bored and tune out.  We’d suggest discussing time limits with the judge and opposing counsel – it’ll keep the trial moving and keep the jurors engaged.
  • Bring doughnuts – Jurors are people, too, and people love doughnuts.  Pitching in with opposing counsel to bring an occasional treat can provide jurors some relief from the drudgery of jury duty.
  • Ask what works for them – The judge can structure the trial any way he or she wants, so it might be worth asking the judge to poll jurors about what would make their lives easier.  Would they prefer one day off per week, or would they rather plow through?  Would it be helpful to start later in the mornings or finish earlier in the afternoons?  Would they prefer a longer lunch break or a shorter trial day with minimal breaks?  After all, it’s their lives you’re interrupting.
Jury service will never be without its inconveniences, but we believe it is within the power of the judge and attorneys to minimize these hassles and be as accommodating as possible.  You’ll be rewarded with a more attentive and focused jury.

To hear more about our thoughts on keeping jurors engaged, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.

Wednesday, September 24, 2014

Avoiding Mistrial by Facebook


Social media audits of prospective jurors are now (or at least should be) the standard before voir dire.  But too often, once the trial team has learned of jurors' “likes” for Mitt Romney or the Kardashians or chemtrails and jury selection is over, their social media profiles are ignored.

From our perspective, monitoring of jurors’ public social networking should continue through trial and through deliberations.  The potential for misconduct is too high to ignore, since many jurors active on social networking may be unimpressed by the flood of admonitions judges provide at the start of trial and before every break. 

Judges around the country have been forced in growing numbers to confront willfully disobedient jurors who post on Twitter, Facebook or their personal blogs about ongoing trials.  By 2010, according to Reuters Legal, juror social media postings have called into question at least 90 verdicts and prompted nearly 30 new trials.  We’re sure those numbers have jumped since then.

When monitoring a trial, we check jurors’ social media postings on a daily basis.  Most of the time we find nothing – really, most jurors do follow instructions.  But there are a significant few who do not, including the young man from Florida we found posting key trial details, and his take on the presentation of evidence, on his Facebook wall.  The posts were overall rather innocuous, but it was clear he was ignoring the judge’s admonitions.  And if he had no qualms about ignoring one key instruction, we were concerned he might flagrantly disregard others throughout trial and deliberations.

We notified our clients, who told the judge, and the juror was off the case.

Monitoring seated jurors’ social media is a time commitment that’s easy to push down the priority list during the hectic days of trial.  But staying abreast of your panel’s continued Internet usage really needs to be just as standard as the initial searches.  Even making sure to ask for their Twitter names during voir dire (or asking the judge to do so to avoid looking stalker-ish) can be a strong deterrent to their disregard of Internet use admonitions.  For more advice on monitoring jurors’ Internet presence during trial, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net

Wednesday, September 17, 2014

Mitigating the CSI Effect


There have been many studies on the “CSI Effect,” the effect of criminal dramas (such as CSI, Law and Order, etc.) on jurors’ decision-making process during trial. Television brainwashes jurors to believe there should be hoards of physical evidence, documentation, video footage, photos or some other “smoking gun” when it comes to proving cases.  As we all know, however, this is rarely the case.

The popularity of the fictional shows can elevate expectations to an unrealistic level that is detrimental at trial.  Our national research has shown 82 percent of jurors watch criminal dramas at least occasionally and 36 percent watch weekly.  However, there are several ways to mitigate jurors’ concerns regarding evidence in your case, and we have a few suggestions that will help jurors understand your case and the evidence presentation process.

Having a fresh set of eyes take a look at your case could divulge some of the weaker points susceptible to the “CSI Effect.”  Our focus groups provide an excellent platform to see what jurors want to know more about.  These questions can highlight the necessary education points that you may not see based on your familiarity with the case or at least the subject matter.

When considering expert testimony in a case where you might lack concrete evidence, consider a witness who will testify how uncommon it is to have every minute charted or every move photographed.  In an information-hungry society, we often forget that not everything is recorded – especially if the incident took place years ago.

It is also important to request jury instructions that are clear and do not confuse the jurors into misinterpreting the law.  This is particularly is necessary when explaining the preponderance of evidence standard since jurors – especially avid crime drama-watchers – are more likely to be family with “beyond a reasonable doubt.”  Clearly explaining the plaintiff’s burden will be effective in mitigating those who demand more evidence and proof.

Most importantly, you must adapt to match the demand of the “CSI Effect” rather than fight it.  With so many people watching shows and interpreting them as a likely representation of the courtroom, the expectations are there.  Providing jurors with adequate explanations and anticipating the information they will require will help to squash doubt about lacking CSI-like evidence in reality.

If you need assistance in discovering what parts of your case could fall victim to the CSI Effect, contact Senior Vice Preside Claire Luna at cluna@juryimpact.net or (714) 754-1010.

Wednesday, September 10, 2014

De-Stressing the Courtroom


You’re driving through an intersection with a green light and suddenly a car rushes in front of you running the red.  Most people would immediately judge this person as reckless with no regard for others, or someone who believes the rules don’t apply to them.  However, if you were in their shoes, it's possible they were rushing a child to the hospital or had some other emergency situation and they believed they could make the light.

At some point, we’re all guilty of this situational bias, also known as fundamental attribution error or FAE.  Described another way, it’s a person’s tendency to place undue emphasis on a person’s internal characteristics – or personality – in a given situation rather than considering alternate external factors.

National Geographic recently wrote about a study by authors from University of Chicago and New York University that found stress exacerbated FAE, making subjects more likely to judge harshly.  National Geographic noted this could come into play in the courtroom where jurors are under stress and forced to make judgments in a new and uncomfortable situation.

We believe that as a result of this stress-induced FAE, jurors could judge your client with a negative bias before all the evidence is even presented.  In order to combat FAE in your case, we suggest mitigating the amount of stress placed upon jurors in a few simple ways.
  • Clear, concise explanations – When discussing the details of your case, be as clear as possible so jurors don’t have to spend extra time processing what you mean in order to keep up.
  • Simple, organized visuals – As we have discussed in previous Things… articles, featuring clear visuals and simple fonts helps jurors understand what you mean and eliminate potential confusion.
  • Respect their time – Part of the stress of jury duty is the time taken away from their other responsibilities.  By explaining things clearly and efficiently, you show the jury their time is valuable. 
We believe humanizing your client and explaining situational factors at play can also mitigate FAE.  Asking a doctor or nurse why they went into the field can help a jury understand their personality better and begin to realize there could be more factors at play rather than judging them on a fundamental level.

If you need assistance creating a clear and concise case message, please contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.