February 1, 2018

Listen to Bitter Jurors (and Make It Better)

By Dr. Ken Broda-Bahm:

Maybe the mistake is in treating it as a “duty,” knowing that the things we do out of obligation are unlikely to be looked upon with anticipation and excitement. But “jury duty” is often framed as something to dread. Certainly, there are a great many stories of people who appreciated their service, and found it fascinating and rewarding — I frequently talk with those people after a trial. But particularly for those who just go through the phase of voir dire, and particularly when that process is extended and doesn’t appear to be well run, the experience can be quite negative. And the perceived flaws in that process can end up creating a parade of complaint-minded almost-jurors leaving the courtroom with a little less support for the jury system, or perhaps some who stay in the courtroom and begin their service with a chip on their shoulder.

Litigators and those who work with them in selecting and persuading jurors can learn from these complaints. For example, a recent published rant on the indignities of the process come from a sports column in USA Today, “For the Win” by Ted Berg. He offers a somewhat off-topic post entitled, “How Do I Survive Jury Duty,” based on his recent experience of jury duty in Manhattan. While Mr. Berg was was not seated for a jury, he did end up serving for four full days of extended voir dire. Writing about the experience, he concluded “It totally sucked.” Some of the reasons it sucked point to factors that are quite often in the control of the court and the parties. This post will call out a few lessons. 

1. Don’t Waste Time

The number one complaint, from Mr. Berg and from potential jurors generally, is wasted time. Attorneys, judges, and court clerks know this well, of course, but with the press of all of the other priorities in starting a trial, do not always take that potential complaint to heart.

There seemed to be two fundamental ways Berg’s experience wasted time. The first is that, instead of relying on time-efficient group questioning or a case-specific survey completed in advance, the court relied on sequential individual questioning, over and over again. He notes that it was, “The 36 of us just sitting there for three days listening to strangers answer the same questions over and over again, it was mind-numbingly dull.”

The second way the process wasted time had to do with the frequency of those moments, familiar to anyone who has spent a lot of time in a courtroom, when nothing — absolutely nothing — appears to be happening. At least, that is the way it looks from the jury box and the gallery. “They gave us lots of breaks, and practically every time we got a break, we would return to the courtroom only for all the lawyers to immediately get up and disappear for a half hour or longer,” Berg explains, “We could have been on break this whole time! If it happened once or twice, I would’ve figured that something just came up and couldn’t wait and they had to go deal with it. But it happened, honestly, after like 80% of the breaks.” Here deeds matter more than words. Being sensitive to time and repeating how much you respect the jurors’ time is not enough. “Various lawyers kept apologizing for how slow the process was going, but it appeared clear from their behavior that they had no respect for our time whatsoever.”

2. Keep Voir Dire Clear and Useful

The questions themselves have to seem relevant to jurors. Part of this comes down to giving an adequate introduction so that members of the panel understand what you are getting at and why. And part of it also comes down to framing the questions so that they are clear and easy to answer. This is a product of planning: framing and phrasing questions in advance and not relying on the inspiration of the moment in creating the questions.

Consider this example from Mr. Berg’s voir dire: “At one point they seriously asked if anyone ‘had ever had an emotional experience that shaped their worldview.’ Who says no to that?” Sometimes there is a reason to ask a question that everyone will say yes to, because it sets the group up for the next question, or it sends the message that these kinds of experiences are universal. If, however, that very general question was really the point of the examination, then it could be a sign of insufficient planning. In working out the voir dire, attorneys and consultants need to consider not just the value of the response, but also the ease of answering the question and the implicit message the question sends. Forced-choice questions, for example, can be very useful, but crafting them requires a fair amount of skill and experience in order to make the jurors’ act of choosing a response seem both easy and reasonable.

3. Make Sure It Appears Client-Driven

Ted Berg noted that the civil case for which he was being questioned, “looked to me from the start like more of a lawyer event than anything else.” He expanded that the proportion and demeanor of the counsel seemed to suggest that, instead of being a search for justice for the parties, it was, “a racket of sorts on both sides,” or more specifically, “a bunch of dudes in suits getting paid by the hour to skim resources off the system and inconvenience people.”

Inevitably, the trial, and in particular the voir dire, is going to be dominated by lawyers, their actions, and their questions. At the same time, it is critical that the parties being represented don’t disappear in that process. The lawyers’ familiarity and comfort in this setting can make it look like they own the process, but that is the wrong message. “It all felt rote,” Mr. Berg complained, “like the people driving and benefiting from the operation were neither the proper plaintiffs nor defendants but the cottage industry that clearly existed around this particular type of lawsuit.”

It is unlikely that jury selection could ever be made a complaint-free experience. At the same time, many courts and litigators need to be better and more consistent in conveying the message:

This process is for the parties and the broader needs of justice. The questions are important, and the answers are easy and nonthreatening. And, above all, we are going to respect your time. And we aren’t just going to say that, we are really going to do it. 

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Other Posts on Juror Experience:

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Image credit: 123rf.com, used under license
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