By Dr. Ken Broda-Bahm:
We all know what good teaching looks like. We remember it from school, or perhaps even from our own time as teachers. Good teaching breaks things down and makes them simple, at least at the start. Good teaching uses concrete and vivid examples and illustrations. Good teaching engages and adapts to the learners. Now, contrast that with the moments at the end of a trial when the legal instructions are given to the jury. There’s no comparison. The judge sits on the bench giving a bald recitation of a dense text: no illustration, no adaptation, no engagement — it is the opposite of teaching. It protects you in the event of an appeal, but it is pretty unlikely to give jurors a useful, accurate, and memorable understanding.
As many have observed, that is doing a disservice to those who sacrifice their time for jury duty. And there may be a better way. A recent article by Fox Rothschild partner, Jeffrey M. Pollack, in the New Jersey Law Journal, carried by Law.com, is entitled “Helping Juries Succeed.” Along with a number of other suggestions, Mr. Pollack argues that parties should be open to the idea of the judge taking a more active and conversational approach in explaining the instructions to the jury, like a teacher would, instead of just reciting the pattern instructions. There are obviously some protections that would be needed, but I think that is an idea worth trying. In this post, I’ll share Mr. Pollack’s proposal and rationale, and also supplement it with some of my own ideas for harnessing the educational advantages while still protecting the case on appeal.