Judges: The Fix Is In

If the jury doesn’t get it right, the judge will fix it.  That seems to be the mentality behind some of the grossly inflated jury awards we have observed through the years, that there is a mechanism in place to "correct" inappropriate verdicts and keep jurors in check.  It’s not an illogical assumption, since judges can and do overturn or throw out verdicts.  Earlier this month, a judge struck down a $7.1 million discrimination verdict against former Los Angeles Times sports columnist T.J. Simers, ruling there was insufficient evidence to support his claims.  Given this seems to be a finding for the jury to make, especially if the case was able to get past the summary judgment stage, coverage of the judge’s ability to make this ruling will likely feed the public’s misconception that judges can overrule an erroneous jury award. Just two years ago, one of our own national surveys showed 78 percent of jury-eligible respondents throughout the country believe that if the case makes it to trial, they would assume the plaintiff’s side of the case has at least some merit.  We have explored this in more detail during our focus groups and learned many jurors believe there is some sort of legal body or process that evaluates cases prior to trial, and if a lawsuit gets to the courtroom, someone somewhere has determined it’s probably worth something. During voir dire, it is crucial to learn which of your potential jurors share these beliefs in order to even the playing field.  Otherwise, the plaintiff is clearly going to enjoy some advantages going in to the process.  Further, jurors need to understand there is no "checks and balances" process that will automatically reverse or alter their verdict if it’s not the "right" one, and thus their decision should be based on reason. If you are interested in evaluating how these fallacies can be more thoroughly explored during voir dire, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

"Making a Murderer" and Your Jury

Following on the heels of last year’s hit real-crime podcast Serial, Netflix appears to have a home run with its documentary series Making a Murderer.  For those who haven’t binge-watched the 10-hour series, it focuses on a Wisconsin man falsely convicted of rape who served 18 years in prison and was exonerated and released – then was charged with murder two years later under what many would call questionable circumstances. It’s addictive television.  But it also taps into what is emerging as part of our cultural zeitgeist: mistrust of police and other institutions. In the wake of highly publicized police shootings in Ferguson, Staten Island and North Charleston, among other places, a Gallup poll in June found only 52 percent of Americans expressed "a great deal" or "quite a lot" of confidence in police – the lowest percentage during the 22 years Gallup has been asking the question.  Only 23 percent of respondents have "a great deal" or "quite a lot" of confidence in the criminal justice system, only slightly higher than the percentage that trust TV news. In the litigation world, the implications for civil rights cases are clear.  With public trust in police and the criminal justice system on the decline, we have found during our focus group research that many jurors – even those we would otherwise consider conservative – are quick to believe plaintiff claims of being mistreated or railroaded by police and prosecutors.  When even Fox News spends valuable screen time debating Making a Murderer and covering police shootings, it should come as no surprise that many laypeople have begun to question the infallibility of law enforcement. From our perspective, the litigation ramifications go beyond civil rights cases.  Gallup has documented that trust in most institutions, including big business and medical systems, has declined in recent years, which may make jurors more receptive to claims against "institutions" including hospitals and Fortune 500 companies.   So what’s a lawyer to do?  There’s no changing the climate of the times, but you can try to identify during voir dire those jurors most likely to be suspicious of and hostile to institutions.  The Gallup poll found Democrats and racial minorities were most likely to hold such views, but – as noted earlier – these attitudes can cross political and racial lines.  Asking jurors about their views of institutions such as the criminal justice system, big business, the media and healthcare companies can help identify those who might be most hostile to your client. And perhaps it goes without saying, but you’d be wise to take a critical look at potential jurors who have recently viewed Making a Murderer. If you have a case where you think anti-institutional bias might come into play, we can help you figure out how best to mitigate that issue.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Thoughts On Jury Duty

From Todd Fairbanks, Vice President of Research

I was recently called to federal jury duty in downtown Los Angeles, and after two postponements due to a busy travel schedule, I showed up in person to explain why a pre-planned business trip to the Midwest would once again preclude me from serving.  (Yes, even jury consultants get called for jury duty, and no, we don’t automatically get stricken for cause.)

Since federal cases typically summon jurors from a much wider geographic area, some in the venire drove from as far as 80 miles away (in L.A. traffic, that one-way trip takes approximately five weeks).  To top things off, El Niño had started with a vengeance, lengthening commutes and explaining the haggard, exasperated faces all around me.  The mood was tense.

This general malaise is something we and our clients often encounter during jury selection.  Based on this, the conventional wisdom states people in your venire don’t want to be there and think jury service is an inconvenient waste of time, which makes for indifferent, detached and even hostile jury panels.  And having helped select juries for trials across the country, and having heard the ridiculous excuses employed to try to get out of jury service, I can see why that is a common perception. 

Furthermore, poor show rates for jury duty seem to back this up.  For example, according to a 2015 San Francisco Chronicle article, “About one-fifth of Californians in the state’s most populous counties fail to respond to a summons for jury service…”.  The article goes on to say things are particularly bad in Ventura County, where the no-show rate is an alarming 45 percent.

However, the article doesn’t focus on the jurors who do actually show up, and their level of engagement and willingness to participate in this fundamental aspect of being a U.S. citizen.  Although it’s true most jurors could think of something they would rather be doing than serving on a three-week trial, another way to look at it is that most of the jurors who brave traffic, weather and inconvenience to arrive at the courtroom do want to be there, which can provide an advantage to the side that taps into this fundamental desire. 

Along these lines, we always recommend that prior to jury selection our clients specifically address the inconvenience of jury duty and how you and your trial team will respect jurors’ time and service by making things as concise as possible while ensuring they have all the information they need to make an informed decision.  Of course, it’s incumbent on counsel to do everything possible to follow through on that promise.

However, just because someone shows up to the courtroom (whether by fear of fine or imprisonment, or a genuine sense of civic duty), that doesn’t automatically mean they will be receptive to your story.  This stresses the importance of conducting pre-trial Internet and social media audits of your venire once the juror list becomes available to look for telltale signs of favorable and unfavorable jurors.  Even if the list is made available only moments before jury selection begins, our team is able to conduct online research and send pertinent findings to your trial team in real time.  This type of research is vitally important because it can uncover viewpoints, biases and negative experiences that might not otherwise surface during voir dire. We talk to more than a hundred jurors each and every month and have helped research and select jurors for dozens of trials, which gives us a unique sense of the qualities that make favorable and non-favorable jurors.  If you and your trial team could benefit from a fresh perspective when selecting a jury, please contact Senior Vice President Claire Luna (who has actually served on a jury, in Ventura County of all places) at 714.754.1010 or cluna@juryimpact.net.