By Dr. Ken Broda-Bahm:
Big win for Apple. In a dramatic conclusion to the company's lawsuit against rival pad and smartphone maker Samsung, the Cupertino powerhouse convinced a federal jury that a majority of Samsung's smartphones and tablets infringe on valid Apple patents, in many cases willfully, and received an unprecedented $1.05 billion award. The verdict was notable for its speed. With 773 individual infringement claims, 100 pages of instructions that took a judge three hours to read, and a 20 page verdict form, jurors were widely expected to take their own sweet time in reaching a verdict. According to one commentator early on Friday, "There's no way a jury composed of mostly non-technical people will get through the verdict form in three days." But by the end of the day on Friday, the jury had done exactly that.
How is that possible? If they were approaching the task with a blank slate, then it is easy to see them taking a week or more to understand and apply the legal framework. If, on the other hand, they were coming to the task already in possession of a common sense notion of what "copying" means and what "a novel invention" is, then the task gets far easier. While many will offer opinions on what the verdict means for the market, and intellectual property cases, I want to take a different tack by looking at the question of how jurors understand instructions. Sara Gordon (2012) recently completed the first ever substantive review of cognitive schema (patterns or mental frameworks) as they relate to jury instructions, and the overarching takeaway from her work is that much of the attention on making instructions more understandable by focusing on "plain language" is missing the point. The best way to improve the use of jury instructions is to adapt the instructions to the knowledge that jurors are coming in the door with -- in other words, adapt to the schema.
Problem: Instructions Are Too Often Written for "CYA" (Cover Your...Appeals)
The instructions on the law that jurors are expected to apply to the case facts have long been criticized for the impenetrable legalese in which they're framed. Even today, when many instructions have made the transition to something that a judicial committee at least considers "plain language," the instructions are often understood incompletely and inconsistently by jurors. As we conduct case specific research, it is still commonplace to see mock jurors openly laughing at the idea that they would be able to understand and apply the law as it is presented in instructions. The problem has been observed so many times that it doesn't persist through lack of awareness. Instead, it persists because the implicit goal of instruction is often to guard against an issue on appeal, rather than to genuinely instruct and educate the jury.
UNLV Law professor Sara Gordon acknowledges that the plain language movement has been successful in some venues in draining the legalese from the language of instructions, she points out that from a social science perspective the broader issue is one of identifying and adapting to jurors' preexisting beliefs, or schemas, about trials and the law. Based on Gordon's comprehensive review of the social science literature on schemas as they apply to the use of jury instructions, adaptation is where the solution lies.
Solution, Step One: Figure Out What a Schema Is
According to Gordon, "Schemas are powerful, though largely unconscious, frameworks that influence the way people see, interpret, and remember information." They differ from beliefs in the sense that they are the scaffolding rather than the individual bricks in the building of consciousness. To use an example cited by the author, if we were to visit the botanical gardens and see a tree we have never seen before, we still recognize it as a tree. That is because we have a schema for "tree" that includes trunk, bark, branches, and leaves and that allows us to see the whole even as each of those elements varies widely from species to species. The schema helps us know what to expect. To chose a more timely example, if you have a schema for "Democrats" and "Republicans" then you can hear a new political issue and have a pretty good idea of where the parties will come out on the issue even before you've heard the official statements.
People use schemas as a mental shortcut in understanding literally all kinds of new information. So, of course, jurors will bring their schemas into trial as well. For example, jurors in an IP case are likely to carry a schema for what "ownership" means, and though it is probably based on experience with property or possessions, that notion of ownership and the related ideas of trespass and theft, will be applied to ideas and designs as well. In some ways that might reinforce the legal instructions (emphasizing patent infringement, for example), but in other cases it may run up against them (de-emphasizing patent validity, for example). The first step -- incidentally, not just for thinking about instructions, but for thinking about persuasion as well -- is to think carefully or conduct research on the schemas that those in your jury pool are bringing to your case.
Solution, Step Two: Adapt Instructions to Jurors' Schema
Simplifying the language and the sentence structure of jury instructions makes them more understandable, but if the goal is education and not just comprehension, then it isn't enough to just describe in easy terms. Think about a teacher who wants his students to understand the solar system. He might just read a bland description of each of the planets and the respective sizes and distances from the sun. But that really wouldn't educate. Instead, the teacher is more likely to begin with what the class already knows or thinks it knows ("How many planets are there?") and to use illustrations to convey meaning ("Jupiter is as big as 1,300 Earths"). Of course, the jury is not going to be making paper mache models as part of its process of understanding the law (though that would be pretty cool). But there are a number of steps that judges could take with instructions in order to educate better by adapting to jurors' existing schemas.
1. Instructions should be given before and after the evidence. That way, the jurors at least have the chance to understand the evidence in terms of the law's schema and not their own when they first hear the evidence. Gordon cites one study (Smith, 1991) showing that when jurors hear the law both before and after the evidence, they are better able to apply a correct understanding of the law to the facts.
2. Instructions should make use of examples. Gordon refers to Connecticut's pattern jury instruction on direct and circumstantial evidence using the familiar example of footprints in the snow, and also supplies a good illustration using examples to teach the difference between proximate cause and cause-in-fact (p. 33).
3. Instructions should include both the rule and the reasoning. If jurors are given an indication not only of what they're supposed to be doing but also why they're supposed to be doing it, it is more likely that they'll incorporate this legal information into their own existing schemas on what is fair and what is right. Because they have played at least some role in reasoning their way to the legal conclusion, they are more likely to believe it and follow it.
4. Instructions should make use of all of the other tools of good communication we would use if we were actually trying to teach. As Gordon notes, the instruction "should incorporate strategies for teaching novice learners, including things like organizing sentences that preview and then review the content; definitions and examples of unfamiliar terms; explicit statements that require minimal inferences; and headers to signal paragraph topics." I would even add that if instructions really aimed to educate and influence behavior, judges should be using graphics as well.
Solution, Step Three: If You Can't Adapt the Instructions (Or Even If You Can), Do Your Own Teaching in Closing.
Knowing that judges control the courtroom, and judges can be slow to change, we have to acknowledge that in many to most cases, the instructions you get won't be the ideal instructions or the instructions you would write if you had the full power to educate the jury. For that reason, it is important for attorneys in closing - and sometimes in opening too - to do as much of that educating as they're allowed to do. Specifically, it can be critical to win from judges the permission to make explicit reference to the instructions that jurors have heard or will hear. And if you've gained that permission, then the four principles in the previous section can just as easily be applied to attorney argument:
- Bookend the evidence with a discussion of legal standards.
- Use hypotheticals or examples drawn from the actual case evidence to clarify the instructions.
- Explain both the "what" and the "why" of the jurors' task, so you don't lose sight of motivation.
- Apply the best techniques of good teaching to the task.
When the judge in the Apple/Samsung trial began reading off the instructions, she opened with, "I need everyone to stay conscious during the reading of the jury instructions, including myself." The suggestion of Sara Gordon's research, however, is that perhaps we should set a higher bar. In addition to instructions that keep us awake, we should instead aim for instructions that truly educate and motivate jurors to alter some of their own schemas in direction of legal accuracy. As Apple now knows, winning the persuasive battle is often a consequence of first winning the educational battle.
Other Posts on Instructions and Apple/Samsung:
- The Worm in the Apple-Samsung Trial: Treat Patent Jurors Like the Consumers They Are
- Just the Instructions, and Nothing But the Instructions: Increase the Salience of Jury Instructions
- Address Your Jury's Inevitable Difficulty With The Instructions
- Know the Limits of Limiting Instructions (But Don’t Necessarily Discard the Instruction to Disregard)
Gordon, Sara G., Through the Eyes of Jurors: The Use of Cognitive Psychology in the Application of 'Plain Language' Jury Instructions (July 1, 2012). UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: http://ssrn.com/abstract=2133000
Photo Credit: methodshop.com, Flickr Creative Commons (alleged model and schematic for iPhone 5).