Dear Readers,
Welcome to the August edition of the Civil Jury Project’s monthly newsletter.
This issue of the newsletter features three articles: one by Professor Bernard Chao about his study on evidence of subsequent remedial measures, another by Professor Steven S. Gensler and Judge Timothy D. DeGiusti about their study on why so few have signed up for Judge DeGiusti's expedited trial program, and a third by Judge Mark A. Drummond about how we can take steps to promote juror focus in the face of changes that technology might be making to our brains.
This issue also includes a selection of the late Justice Stevens's most notable statements about juries.
Lastly, this issue launches a new section for this and future issues of the newsletter: testimonials from recently discharged jurors.
Thank you for your support of the Civil Jury Project. You can find a full and updated outline of our status of projects on our
website
. In addition, we welcome op-ed proposals or full article drafts for inclusion in upcoming newsletters and on our website either by email or
here
.
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Sincerely,
Stephen D. Susman
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August 6th
Annual Conference of
Circuit Court Judges
Naples, FL
September 12th
Jury Improvement Lunch
Denver, CO
October 10th
Jury Improvement Lunch
Houston, TX
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Rethinking Evidence of Subsequent Remedial Measures
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By Prof. Bernard Chao, Academic Advisor to the Civil Jury Project
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Federal Rule of Evidence 407 and its many state counterparts prohibit plaintiffs from introducing evidence of subsequent remedial measures to show that the defendant is to blame. The rule is intended to prevent jurors from judging a defendant’s conduct using hindsight bias. Not surprisingly, plaintiff attorneys often try to take advantage of the rule’s numerous exceptions to introduce evidence of remedial measures for other purposes (e.g. to prove feasibility or to impeach a witness). Of course, their actual hope is that juries will use the evidence for the impermissible purpose -- to show that the defendant’s original actions were wrong. My student, Kylie Santos, and I decided to test whether this assumption about jury decision-making was right. I presented a draft of our results to the NYU Civil Jury Academic Roundtable this past spring and share some of the highlights here.
For each experiment, we took a personal injury case and created multiple different scenarios. In the basic case, there was no evidence of subsequent remedial measures. Then in another version, we added that evidence. In still two more versions, we layered on limiting instructions. The first limiting instruction was a simple jury instruction that said that jurors could use the evidence of subsequent remedial measure for one purpose, but not another. The second limiting instruction went on to explain that the rule encourages people to fix problems.
In the first experiment, the plaintiff fell down a steep staircase in her apartment building and sued the landlord for negligence. The evidence of subsequent remedial measure was a redesigned staircase that included a landing. In the second experiment, the plaintiff was injured snowboarding. He sued the snowboard manufacturer alleged that the snowboard was defective. The manufacturer then redesigned the snowboard.
For each scenario, we made a PowerPoint Presentation with narration. A judge introduced the case. Then the plaintiff’s attorney presented the highlights of the plaintiff’s case. Next, the defendant’s attorney presented defendants’ arguments. Finally, the judge returned and instructed mock jurors on the law. Videos were then made for each scenario. They lasted between approximately fifteen to seventeen minutes. We then recruited mock jurors online paying them a few dollars. Over one thousand seven hundred subjects watched one of our scenarios and rendered verdicts on liability, and if applicable, contributory negligence and damages.
As expected, evidence of subsequent remedial measures helped plaintiffs win more often in both our experiments. But surprisingly, our results also suggested that introducing this evidence may lower damages in some cases, thereby counteracting the increased liability findings. In our second experiment, we found that introducing evidence of subsequent remedial measures lowered damages (from $310k to $259k) and increased rates of contributory infringement (from 31% to
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46%). To be clear, both findings were just short of reaching statistical significance.
[1]
But when we combined the two numbers and looked at net damages (the amount of damages the plaintiff would actually recover after discounting for contributory negligence), the findings were significant.
[2]
These findings are consistent with what we know about juries' decision-making on damages. Other studies have shown that juries award higher levels of damages when they view the underlying conduct as more blameworthy. By taking remedial measures, the defendant is probably looking less blameworthy. Thus, we see the opposite effect; damages decrease. A quick word of caution: we did not observe the same effects in our first experiment. It may be that fixing stairs did not make the defendant as morally upstanding as redesigning a snowboard.
The upshot of our study is that evidence of subsequent remedial measures helps plaintiffs on liability but may hurt them on damages in some cases. Thus, if liability is hotly contested, plaintiff should try to introduce evidence of subsequent remedial measures. Obviously, the defendant should try to do the opposite and exclude that evidence. On the other hand, if liability is straightforward and the real dispute lies with damages, the parties may want to switch tactics. Plaintiffs may want to steer clear of presenting evidence of subsequent remedial measure to avoid lower damage awards. On the flip side, defendants may want to introduce that same evidence to show what good citizens they are. Of course, in most cases, the parties care about both liability and damages. In these cases, parties are going to have to prioritize. Do they want a little more help on the liability side and risk hurting their damages case or is the opposite true?
If you want to learn more about the details of our experiments, the full paper,
How Evidence of Subsequent Remedial Measures Matters
, will be published in the Missouri Law Review. A draft is available at this link:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3374022##
There are some interesting findings about limiting instructions too. The short is answer is that they may work if you use the more detailed instruction that explains the basis for the instruction!
[1]
When social scientists analyze data, if there is less than a 5% chance that the distribution could be found randomly (p=.05), they say the results our statistically significant. Our finding on raw damages and contributory negligence were at the p=.076 and p=.11 levels respectively.
[2]
Here, the p value was .04 making the findings statistically significant.
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Prof. Bernard Chao
Professor at the University of Denver Sturm College of Law, Co-Director of the Denver Empirical Justice Institute and a principal of Hugo Analytics LLC, a consulting firm that performs online experiments for trial attorneys.
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Top Five Things that Justice Stevens Said About Juries
"The New Jersey procedure challenged in this case is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system." Apprendi v. New Jersey, 530 U.S. 466, 497 (2000).
"We recognize . . . that in some cases jury factfinding may impair the most expedient and efficient sentencing of defendants. But the interest in fairness and reliability protected by the right to a jury trial—a common-law right that defendants enjoyed for centuries and that is now enshrined in the Sixth Amendment—has always outweighed the interest in concluding trials swiftly." United States v. Booker,
543 U.S. 220, 244 (2005).
"A citizen should not be denied the opportunity to serve as a juror unless an impartial judge can state an acceptable reason for the denial. A challenge for cause provides such a reason; a peremptory challenge does not.” Foreword, 78 Chi.-Kent L. Rev. 907-08 (2003).
"Of special concern to me are rules that deprive the defendant of a trial by jurors representing a fair cross section of the community. Litigation involving both challenges for cause and peremptory challenges has persuaded me that the process of obtaining a 'death qualified jury' is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction." Baze v. Rees, 553 U.S. 35 (2008) (Stevens, J., concurring).
"Death sentences imposed by judges over contrary jury verdicts do more than countermand the community's judgment: they express contempt for that judgment. Judicial overrides undermine the jury system's central tenet that 'sharing in the administration of justice is a phase of civic responsibility.'" Harris v. Alabama, 513 U.S. 504, 522 (1995) (Stevens, J., dissenting) (citation omitted).
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Is Technology Changing Our Brains?
Jurors Go Cold Turkey on Cell Phones
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By Hon. Mark A. Drummond, Judicial Advisor to the Civil Jury Project
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“The year was 2081, and everybody was finally equal. They weren’t only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211
th
, 212
th
, and 213
th
Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.”
And so begins Kurt Vonnegut’s short story,
Harrison Bergeron
. The story opens with George and Hazel (husband and wife) watching a ballet on television. However, the ballerinas wear weights (so they are not too graceful) and masks (so they are not too beautiful).
Vonnegut then describes the couple: “Hazel had a perfectly average intelligence, which meant she couldn’t think about anything except in short bursts. And George, while his intelligence was way above normal, had a little mental handicap radio in his ear. He was required by law to wear it at all times. It was tuned to a government transmitter. Every twenty seconds or so, the transmitter would send out some sharp noise to keep people like George from taking unfair advantage of their brains.”
After reading
Harrison Bergeron
, I have three questions:
1. In 2015, have we reached Vonnegut’s vision of the year 2081—but 66 years early?
2. Have we self-inflicted Vonnegut’s vision of repeated interruptions by our own addiction to technology?
3. If so, what difference does this make to us as advocates and judges?
Research shows that, on average, people check their cell phones 150 times per day. That average goes up dramatically the younger you are. The average cell phone owner uses their phone 3 hours and 16 minutes every day. These statistics are just for cell phone use alone. They do not include those people who sit at a computer all day receiving emails and instant messaging.
So, what happens when we take people out of the real world and put them in a courtroom without access to their phones? In the real world they would, on average, be checking their phone every 6 ½ minutes. What happens when a person is forced to go cold turkey from using technology?
Let’s look at some studies. Many studies have been conducted on depriving college students of their cell phones. These are our next generation of jurors. The students reported symptoms similar to those of addicts trying to quit smoking or drugs. The condition now has a name: information deprivation disorder.
Ask yourself some questions. Is it easier or harder for you to concentrate on reading a brief or a case than it was 10 years ago? Have you ever gotten into a car to go to a movie and told your companion that you needed to go back inside to grab your cell phone. Why? You’re going to a movie!
Moreover, even if we take cell phones away from jurors, the mere thought of those text messages piling up in the jury room or in their car outside the courthouse can be just as distracting.
A researcher wrote, “The problem is that just because a student’s technology is ‘out of sight’ it is not ‘out of mind.’ For example, [one study] found no neurological differences between externally driven task switching (e.g., responding to a text message beep) and internally driven switches (e.g., thinking about a text message).”
Brain scientists have known for years that our brains are constantly changing. The brain adapts and finds new pathways when the brain is damaged or when the person learns a new skill, such as a new language or playing the piano. Our brains also change based on whether the information received is primarily verbal or visual and how many times the information being received is interrupted.
Studies have shown that when a person is interrupted from doing a task, the time it takes to get back on task ranges from 15 to 25 minutes. People are constantly being distracted by information technology. Moreover, the distraction is usually preceded by an auditory “bing!” from their device.
In the real world, information is usually chopped into bits (texts and tweets); is given at random, unpredictable intervals; and is visual. In the courtroom, the information is more linear. It is continuous and flowing, and it is mostly verbal. This is a big shift for the brain.
That’s the bad news. Now, here’s the good news. When people are told about the phenomenon of being interrupted and the effect those interruptions have on concentration, they are able to adapt and improve their performance. So, how do we tell them? How do we address this issue to counteract information deprivation disorder in the courtroom? I offer three suggestions: First, address it head-on. Second, see if the judge will let the juror ask questions. Third, do what great trial lawyers have done for years—that is, both show and tell the jury about your case and, if you have to rely totally on verbal information, become a master at delivering that information by chunking it.
Let’s say you have a three-week trial looming involving forensic accounting or gene sequencing or thermodynamics. There are three experts on each side. As you know, under the local rule, no cell phones are allowed in the courthouse. Address the elephant in the room head-on.
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Ask questions such as, “Folks, we estimate this will take about three weeks. It will involve a lot of science. We know you cannot bring your cell phones into the courthouse and the judge has already told you that you cannot use your phone to do independent research. So, will leaving your cell phone in your car be so much of a distraction for any of you that it would be hard for you to listen to the evidence in this case?”
In my opinion, this accomplishes three things. First, some jurors may be honest enough to admit that it would cause a problem. They are probably the ones who post more than 10 times a day, every day, such crucial information as, “The line is sooooo long at Starbucks this morning! (sad emoticon).” You must then decide whether the other attributes of that juror outweigh the juror’s concern about the world not knowing how long the line is at the local Starbucks.
Second, once you talk about the elephant in the room, the elephant becomes smaller, or may even disappear. The brain scientists tell us that when people are alerted to the phenomenon, they are better able to handle it.
Third, even if the cell phone-addicted juror does not come forward, fellow jurors may alert the court if that juror is either not deliberating in good faith or directly violates a court rule and brings his or her cell phone in the jury room. Judges have the option of removing jurors for misconduct and putting in an alternate juror.
The next thing to do is to propose to the court that jurors be allowed to submit questions. The ancient Chinese proverb says, “Tell me and I’ll forget; show me and I may remember; involve me and I’ll understand.” This may turn passive jurors who are sitting there thinking about all the texts they are not reading or all of the events they are not posting into more active, listening jurors. Peer dynamics can be powerful, especially if others are submitting questions.
Finally, how can we make the information that flows in court more like the information people are used to in the real world? Fortunately, great trial lawyers have used these techniques for years. They show as well as tell the jury about their case, and they are masters at delivering verbal information.
Brain scientists tell us that people remember 70-80 percent of what they see and hear and only about 10-15 percent of what they just hear. Great trial lawyers show their cases to their juries. A picture truly is worth a thousand words.
If the scene is important, a picture is introduced early so that the witness can show the jury the scene. If dates are important, the witness doesn’t merely regurgitate when things happened; a diagram or flow chart is prepared and is used with the witness or maybe as early as the opening statement. great trial attorneys are always asking, “I want them to hear this information, but how can I also show it?”
So, what if all you have are words? Listen to the Rev. Martin Luther King Jr. deliver a speech. Listen to David Boies argue or make an announcement at a press conference. They are masters of pausing and delivering discrete, meaningful chunks of information. Kind of like a good tweet.
Resources
Kurt Vonnegut Jr.,
Harrison Bergeron
(1961).
Larry D. Rosen, Alex F. Lim, L. Mark Carrier & Nancy A. Cheever, “An Empirical Examination of the Educational Impact of Text Message-Induced Task Switching in the Classroom: Educational Implications and Strategies to Enhance Learning,”
Psicologia Educativa
, Vol. 17, No. 2, pp. 163-177 (2011).
Bob Sullivan & Hugh Thompson, “Brain, Interrupted,”
New York Times
(May 3, 2013).
Richard Gray, “Facebook generation suffer information withdrawal syndrome,”
The Telegraph
(Jan. 2, 2011).
Mark A. Drummond, “How about a Free Shadow Jury? Inside the Juror’s Mind,”
Litigation News
, Vol. 38, No. 2, at 16 (Winter 2013), available at http://bit.ly/LN382-drummond.
John R. Stegner, “Of Course Jurors Should Ask Questions: Lessons Learned from 16 Years on the Trial Bench,”
Litigation News
, Vol. 38, No. 4, at 20 (Summer 2013), available at http://bit.ly/LN384-stegner.
[
Is Technology Changing Our Brains?: Jurors Go Cold Turkey on Cell Phones.
Originally published in
Litigation News
, 40:3 (Spring 2015). Copyright © 2015, American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.]
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Hon. Mark A. Drummond
Judge of the Eighth Circuit Court in Illinois.
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Testimonials from Recently Discharged Jurors
"I was honored to be a part of this, and it so reinforced my love for the city: a Jewish judge, a Japanese lawyer for the plaintiff, a Chinese lawyer for the Armenian defendant, and a jury that ranged from a physicist, a rabbi, an assistant teacher, to an Amazon driver and student studying sign language--IndoChinese, Jewish, Spanish, "WASP" American, Japanese. A celebration of my city's diversity." -- Miriyam, Los Angeles, CA
"Right to trial by jury is a very important part of our system, so it was great to be a part of it. I felt like my voice was heard and actually had an impact during deliberation." -- KC, Chicago, IL
"The number of times that the burden of proof and "innocent until proven guilty" were said made me realize this country is really about freedom." -- Juror, Trophy Club, TX
"I felt like I was part of something bigger." -- Juror, New York, NY
"When I received my summons I felt slightly nervous. But grateful that I live in a country where this is available."
-- Juror, Houston, TX
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Look out for the September Newsletter!
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Tune in next month for articles by
Hon. Virginia Norton
and
Hon. Ron Spears
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Civil Jury Project, NYU School of Law
Vanderbilt Hall, 40 Washington Square, New York, NY 10012
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Stephen Susman
Executive Director
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Samuel Issacharoff
Faculty Director
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Anna Offit
Research Fellow
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Michael Pressman
Research Fellow
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Kaitlin Villanueva
Admin. Assistant
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Create a great offer by adding words like "free" "personalized" "complimentary" or "customized." A sense of urgency often helps readers take an action, so think about inserting phrases like "for a limited time only" or "only 7 remaining!"
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