By Dr. Ken Broda-Bahm:
Last week, in a blog article in the Huffington Post, screenwriter and columnist Robert J. Elisberg shared his trial diary from a two-week workplace injury case against the retailer Cost Plus. His notes included this observation, which is worth quoting at length:
One of the oddest things of all is that, very surprisingly, it wasn’t until near the very end of the trial that we even started to even have an idea what we were there to decide on. Really. In most cases, I assume that you know from the opening statements that you’re deciding on guilt or innocence, in a criminal case. Or who improperly turned their car first at an intersection to cause a crash. Or if someone broke a promise. Or whatever is at issue. But in this trial...honestly, we had absolutely no idea what was exactly at stake to be decided. We knew that the defendant Cost Plus admitted fault, so that wasn’t even an issue. And that’s all we knew. We could also presume what was going on. It seemed like what we would have to decide was one of two things (or both) - first, whether the plaintiff actually had [Complex Regional Pain Syndrome] and if so, when it initially occurred, or second (the most likely decision), how much or little money she should get awarded. But even if the latter was the issue - we had zero idea what amount was being asked for by the plaintiff. None.
Unfortunately, that level of mystery on the specific questions that jurors will answer is not as uncommon or surprising as Elisberg thinks. While jurors will more commonly hear damage requests in voir dire or opening statement, it is typical for the jury to hear the specific instructions on the legal claims they'll decide only after they have heard all of the evidence in the case. Obviously, that isn't ideal from the perspective of juror comfort or understanding. In a review of the issue, University of Nevada, Las Vegas Associate Law Professor Sara Gordon (2014) writes that, "Jury research tells us that jurors want to understand the information they hear in a trial so they can reach the correct decision." It should be a simple matter to give them the right instructions -- meaning those necessary to identify and resolve the claims at issue -- prior to hearing the evidence. It isn't, but it should be, and this post looks at why.