Civil Jury Project
Volume: 5 | Issue 8
August - 2020
Opening Statement
Death takes us by surprise,
And stays our hurrying feet;
The great design unfinished lies,
Our lives are incomplete.

But in the dark unknown,
Perfect their circles seem,
Even as a bridge's arch of stone
Is rounded in the stream.

Alike are life and death,
When life in death survives,
And the uninterrupted breath
Inspires a thousand lives.

Were a star quenched on high,
For ages would its light,
Still traveling downward from the sky,
Shine on our mortal sight.

So when a great man dies,
For years beyond our ken,
The light he leaves behind him lies
Upon the paths of men.
Henry Wadsworth Longfellow
On July 15 our message to you regarding Steve’s untimely passing quoted the final four lines of Longfellow’s poem. We now include more of Longfellow’s tribute to his close friend, Charles Sumner. 

We include more of the poem because many of you have asked, “What’s next?”
What’s next is us continuing the “great design” that Steve started, as well as we can, without our founder, mentor and friend.

This newsletter is dedicated to Steve. He was the Civil Jury Project. He founded and funded the Project. He personally recruited more than 400 Judicial Advisors, 73 Academic Advisors and 43 Jury Consultant Advisors. He planned workshops; created and edited this newsletter; and, when the pandemic hit, he steered the resources of the Project toward crafting best practices for remote jury trials should they be needed.
He crisscrossed the country at his own expense to talk to trial attorneys, trial judges and most importantly, jurors. He advanced jury innovations. In short, he was a champion of and a cheerleader for what has been described by one of our first Judicial Advisors, U.S. District Judge William G. Young, as “…the purest, fairest, most inclusive and robust expression of direct democracy that the world has ever seen.” UBS Financial Services, Inc. et al v. Asociacion de Empleados del Estado Libre Asociado de Puerto Rico , 3:16-CV-02017, at *45 (D.P.R. Dec. 20, 2019).
We considered devoting this entire newsletter to Steve. But he would not have wanted that. He would have wanted us to advance the ball. So we will end with all of the tributes for Steve that we have received from you, our readers and supporters.
We begin with a piece by Oscar Bobrow and Lois Heaney written in response to a previous article by one of our research fellows, Michael Pressman, regarding jury demographics possibly changing in light of the pandemic. What you are about to read is the second piece they submitted.
When we received their first piece, we reached out to thank them for reading and responding and we asked if they had any ideas for possible solutions to achieve a representative cross-section. They responded with 9 suggestions.
This is where you come in. This is where you can help us answer the question, “What’s next?” With the wealth of talent and experience we have among our Judicial, Academic and Jury Consultant Advisors we want to poll you to see if the pandemic is changing jury demographics.
We realize that the poll will be anecdotal since few, if any, court systems collected demographic information on jurors before the pandemic. However, we are interested in surveying and reporting on what you are seeing in your court system as jury trials, both criminal and civil, restart. If you have any suggested poll questions that you would like to see answered, please send them to us.
Our second piece is from one of our Judicial Advisors, Chief Judge Jack Tuter, reporting on his Circuit’s continued efforts to model best practices for remote jury selection and trial.

We have started work with the state court system in Illinois. Our work involves crafting remote jury trial protocols and, in particular, a juror questionnaire for remote jury service. We understand this questionnaire will be sent to 16,000 potential jurors and we hope to bring you the results in our September newsletter. We thank Chief Cook County Circuit Judge Timothy C. Evans for allowing us to post this work in progress here .
The edited version of our model virtual trial is available for viewing here . Our goal was to provide a concise overview of the elements needed to conduct a remote jury trial. We thank Judge Lorna Propes, a Judicial Advisor, for enlisting the help of Lauren Himel, a professional video editor, who also happens to be Judge Propes' daughter.
Finally, thank you so much for the messages you sent in support of the Project and in honor of Steve. I wrote at the beginning that Steve was the Civil Jury Project. With his passing, that torch has been passed along to us—and to you.
Please keep in touch, please respond to the poll we will be sending, and please send any stories or thoughts on navigating this new reality to us here or by email to me at .
Thank you for yo ur support of the Civil Jury Project.

Hon. Mark A. Drummond (ret.),
 Judicial Director
Upcoming Events
Due to the ongoing COVID-19 pandemic, all in- person events are canceled for the remainder of 2020.
A Response to Michael Pressman's "The Challenge of Achieving
a Representative Cross-Section of the Community
for Jury Trials during the Pandemic"
By Oscar Bobrow and Lois Heaney
We take issue with Research Fellow Michael Pressman’s analysis in the Civil Jury Project's July newsletter that a challenge to under-representation based on race or sex stemming from the impact of post-COVID jury policies would fail because “courts have no control over the virus” and thus, such policies “would not be systematic exclusion.”
The theory is wrong and should fail.  To the contrary, it is fully within courts’ control to devise responses to the coronavirus that do not result in exacerbating underrepresentation of already underrepresented groups. 
Recent polls indicate that in the wake of the pandemic, young black and Hispanic women and older white women were among the most hesitant to appear in court in response to a summons while younger white politically conservative males were more likely to appear in court. [1]   
Experts have been discussing juror-friendly policies courts might implement as they re-open and summon jurors. One recommendation is increased flexibility in granting postponements and excusals. [2]   While such policies may appear reasonable in response to the COVID-19 crisis, they will increase unrepresentativeness in jury pools. Even in the absence of a pandemic, Black jurors are more likely than white jurors to request and receive temporary excusals from jury service. [3]   The risk of increasing under-representation must be addressed as courts re-open and plan to conduct jury trials.

It is widely known that communities of color have suffered more severe impacts from COVID-19 than have white communities. [4]  Accordingly, flexible excuse and postponement policies will surely have a disparate impact on summoned jurors from communities of color. The experts who recommend increased flexibility in excusal and postponement policies acknowledge that the net effect of such policies will be that “jury pools will be whiter, less diverse and younger.” 

While the courts did not cause the pandemic, courts have the power to assure representativeness in jury pools, pandemic or not. States must protect the liberty of citizens. The right to a trial by a jury of one’s peers in our courts is one of the most important means of doing so. Moreover, many remedies are available to courts through executive, judicial or administrative action to avoid the unintended discriminatory impact of court policies.

First, courts must recognize the role of historic systemic racism, often implemented through government policies, in the disproportionate impact of COVID-19 on African American and Latinx communities. These include:  

  • lower access to health care, increasing the likelihood of high-risk underlying conditions;

  • higher numbers working in “essential” jobs, increasing exposure to the virus; and,

  • higher rates of arrest and imprisonment, again increasing possibility of exposure.

Even in the absence of a pandemic, African-American jurors who appear for service are more likely than whites to be excused. Temporary excusals are granted due to issues such as loss of income, lack of transportation or childcare, or underlying medical conditions. An increasingly flexible approach to excusals and postponements will certainly have a disparate impact on communities already excused in greater numbers. [5]  

In the midst of the pandemic, courts can and should implement policies that help assure that each litigant gets a fair trial from a fair cross-section of the community. One obvious remedy is over-summoning from census tracts or zip codes with higher African American, Latinx and low-income populations. This approach to reducing the impact of higher undeliverable and non-response rates can equally help to minimize the discriminatory impact of higher excusal and postponement rates.  In many jurisdictions, such stratified random sampling could be implemented through administrative order or policy changes.

Another approach to protecting fair trial rights in the face of a decrease in fair representation is for judges to allocate additional peremptory challenges to defendants in criminal cases faced with increasingly unrepresentative jury panels. Similarly, a time of crisis presents an opportunity to carefully evaluate and implement systemic changes that enhance representativeness including broadening source lists (to include, for example, tax files, unemployment records, and welfare recipients) and increasing juror pay.

Proposed Remedies

We suggest that there are a number practical and achievable steps that can be taken now to increase jury representativeness.

1.     Juror summons include a statement that the court seeks to a have a racially and economically diverse pool of jurors and an introduction that includes steps being taken by the court to ensure jurors' safety through social distancing and providing masks.
2.     Expand the source lists: reliance on voter registration and motor vehicle/state identification card lists has failed to provide representative jury pools and is not race neutral. Expand the source lists to include state taxpayer rolls, named person on utility bills, and persons who receive public assistance or unemployment benefits.
3.     Require data collection by jury commissioners and publication of the demographic characteristics of the jury pool including the recognized cognizable groups – race, ethnicity and gender.

4.      Make the criteria for excusal explicit and the hardship process transparent providing counsel and the public with data as to the impact of hardship excusals on those cognizable groups.
5.     Send second jury notices to non-responders– the National Center for State Courts confirms that second and third summons increase the jury show rate including reiteration of the efforts being made to socially distance and make the court facility safe.
6.      Use stratified or cluster sampling - it is well known that communities with higher percentages of low-income households and people of color have higher rates of non-deliverables and non-responses. A number of factors contribute to this including that r enters tend to be disproportionately people of color and younger people who move more often than homeowners resulting in higher rates of non-deliverable jury notices; the distance or cost involved in traveling to the courthouse; and the diminishing number of employers who pay employees while performing their jury service obligation. Some districts use zip code replacement for non-deliverables ( The District of Massachusetts, Eastern District of Pennsylvania and District of Kansas.) More effective is a scheme for stratified sampling – also referred to as cluster sampling by which additional names are drawn from specific zip codes or sub-jurisdictions within the county which have historic low response rates and larger numbers of residents who are people of color. (see Nancy J. King and G. Thomas Munsterman, Stratified Juror Selection: Cross-Section by Design, 79 Judicature. 273 (1996) Available at:
7.     Restore civil rights including the duty to perform jury service to persons who have completed their felony sentences.
8.     Increase the public’s ability to serve on juries by more efficient use of court time by conducting trial on a schedule of 9 a.m. to 1 p.m. with two brief breaks, permitting jurors an opportunity to work part time and maintain some income.
9.     Increase pay for jury service so that jury service is not the exclusive province of those who can afford to serve. The Federal Courts pay $50/day while some state courts still pay as little as $5/day, including California which pays $15/day. (See Hon. Gregory E. Mize (ret.), Paula Hannaford-Agor, J.D. & Nicole L. Waters, Ph.D. April 2007, THE STATE-OF-THE-STATES SURVEY OF JURY IMPROVEMENT EFFORTS: A COMPENDIUM REPORT)

[1]  The National Center for State Courts commissioned a survey of 1,000 potential jurors conducted in mid-June 2020 ( ). The survey company reported that African Americans are “the least likely to report to the courthouse for jury duty because of health or safety reasons.” More than 80% of younger, more conservative, non-college educated white men said they would report for jury service if summoned; while only 45% - 60% of African American women, younger Hispanic women and older white women said they would report ( Similarly, a National Jury Project commissioned survey of over 400 jury eligible respondents in seven California counties in June 2020 found a majority unwilling to serve this year fearing exposure to COVID-19, with young people, African American women and Latinx men over 30 particularly hard hit by income loss stemming from the pandemic. National Jury Project survey results are available from or contacting .

[2] Paula Hannaford-Agor, Re-establishing Jury Pools in the COVID-19 Era, National Center for State Courts webinar (June 4, 2020),  

[3] A 2011 study conducted for the Chief Administrative Judge of the NYS Unified Court System found that among those who appeared for jury service, 11% of white jurors received temporary excusals, while 20% of Black jurors were excused. The study is available at

Oscar Bobrow Chief Deputy Public Defender in Solano County and the immediate Past President of California Public Defender’s Association. A public defender for the last 35 years who has tried to a jury over 100 felonies. CPDA board member for the last 14 years serving on CPDA’s legislative committee. Board Member of the planning committee for the CPDA/CACJ annual Capital Case Defense Seminar. Worked for many years litigating challenges to jury venires based upon the under representation of minority populations in jury pools and introduced legislation in Sacramento to improve racial justice in the criminal system.
Lois Heaney: Senior trial consultant and president of NJP Litigation Consulting/West (formerly known as National Jury Project) in Oakland since 1979. Using the tools of social science, she has consulted with lawyers in thousands of criminal and civil cases and conducted research leading to challenges to jury composition and to the practice of “death qualification” in capital cases focusing on racial disparity. She has been an invited speaker at the Ninth Circuit Judicial Conference, Northern District of California Judicial Conference, New York State Unified Court System Judicial Seminars and Florida Conference of County Court Judges.
In Memoriam
The Civil Jury Project received several condolences, via email and our website, after the death of Founder Stephen D. Susman. They serve as a testament to the many lives he touched through his work.

Many lawyers talk about their love for the jury system, but Steve put the words into action through the Civil Jury Project at NYU School of Law. I was fortunate to have worked firsthand with Steve at the first Jury Improvement Lunch in Los Angeles and, then, when I served as a moderator at the October 2018 state trial court forum in New York. His dedication to the preservation of the civil jury trial is inspiring, and will not be forgotten.

  Judge Elizabeth R. Feffer
Judicial Advisor

I am so sorry to hear the sad news. Steve was indeed a champion of democracy. My jury trials are so much better now with his good and gentle and persistent advice in my head and his caring and conscience in my heart.
Chief Judge John R. Tunheim
Judicial Advisor

Cognizant there are no words, you are all in my thoughts and prayers. SDS was sui generis. I was honored to have worked at SG and continued my friendship with him since 1993. Like I’m confident for all of you, he was my go to on a myriad of levels. I look forward to honoring him and advocating for him and his legacy. Prayers abound. My very best. 
Sofia Adrogue

Very sorry for your loss. Steve was an amazing guy.
Judge Cindy Truong
Judicial Advisor
So sorry for the loss of such a great trial attorney and legal practice leader. He will be missed!
  Stephen Kaplan

Given Steve’s horrific injuries and subsequent complications, including COVID-19, his death was not a surprise, but it still leaves one reeling.

As you know as well as anyone, a professional relationship with Steve quickly becomes a cherished friendship which is irreplaceable. My deepest condolences to you, Kaitlin, Michael, and everyone else who worked so closely with Steve and the CJP.

When we are a bit further down the road and as the dust settles, please let me know what I can do to assist in carrying on the work.
Judge Tom Marten
Judicial Advisor

Steve’s loss is sad and tragically too early. Thanks for keeping the mission alive.

Judge Nancy Atlas
Judicial Advisor

I am very sorry for the loss.
Professor Cindy Simmons, J.D.
Academic Advisor

I am so sorry we have lost Steve. I met him last year when I was honored to participate in the Civil Jury Project. He was a very nice man who was passionate about the Civil Jury Project. He will be missed!

Judge Susan Johnson
Judicial Advisor

So sorry to hear about Steve’s passing. He was such a powerful and passionate force and I know you will all miss him. Deepest condolences.

Judge Nancy Fuerst
Judicial Advisor

I am very sorry to hear this. My first encounter with Steve was at an ABA Litigation Section years ago, in Cleveland I think, where he, Phillip Corboy and Max [? From L.A.] participated in an audience-judged mock trial. Steve wore a three-piece chocolate brown suit with cowboy boots and employed his best Texas drawl. Beat the pants off them! He was doing important work with the Civil Jury Project as well. I saw him here over lunch with the judges and twice at luncheon sessions later, the most recent featured by my taking a verdict while his meeting was in progress and bringing two of the jurors with me to the remainder of the meeting. Steve made a difference!

Judge R. Brooke Jackson
Judicial Advisor

I am so sorry to hear this very sad news. Steve was a wonderful lawyer whose talents in the courtroom were exceeded only by his care and concern for our great profession.  May his memory forever be a blessing. 

Judge Timothy Driscoll
Judicial Advisor

Steve Susman was larger than life in so many ways. We in the legal community feel his loss acutely. I have been truly fortunate to work with him as a judicial advisor on the The Civil Jury Project and to witness firsthand his enthusiasm and dedication to this important work. With the ”vanishing jury trial” resulting in diminished opportunities for lawyers to try cases, Steve wanted to design a way for young lawyers to gain experience in the courtroom.  I am heartened by the fact that we were able to institute the Young Lawyers in the Courtroom Program in the Harris County courts last year and that Steve had the opportunity to see his wonderful idea come to fruition. This program is just one of many examples of Steve Susman’s unwavering commitment to the legal profession and to making it accessible to all — whether litigants, litigators, or jurors.

Judge Caroline Baker
Judicial Advisor

So sorry for your loss, as a friend and colleague.

Wendy McCormack
Executive Director-National Institute for Trial Advocacy (NITA)

I’d like to start by offering my condolences for the loss of Steve Susman. I only had the pleasure of meeting him in-person on one occasion at the ASTC conference in 2016, but just that single experience made an impact on me, and I know he’s made such a positive impact on so many others. To donate the amount of time, money, and effort he devoted to causes like the Civil Jury Project is truly remarkable. He may be gone but his contributions to society will surely live on.
Ben Perkel
Jury Consultant Advisor
I first met Steve Susman at the Federal Courthouse on Spring Street in Los Angeles where I now sit in Department 4. A new federal courthouse was built in downtown Los Angeles so this building became available and was leased by the Superior Court for 10 years. At that meeting Steve explained the goals of the Civil Jury Project. He created excitement in myself and other state Court Judges who attended. Not long thereafter a group of us were invited to spend a day at NYU with state and federal judges from across the Country. It was there that I was able to speak to Steve and learn more about his goals for the Project. We met again when he returned to Los Angeles for a meeting with Jurors and lawyers. I was on a panel discussion with him and was able to provide background on the Los Angeles County Superior court which has almost 500 judges.
Each month I looked forward to the “Jury Matters” monthly newsletter.
I hope the Civil Jury Project continues. It is needed more than ever as we deal with this Pandemic.
I was so sad when I heard about Steve’s bike accident and read of his love of biking. There have been so many wonderful tributes to Steve since his passing. He accomplished so much in his lifetime. I’m happy I was able to spend time in his presence, a presence that will be missed by so many. I prayed for Steve and his family. Theirs is the greatest loss.
Thank you for the opportunity to share my thoughts.
Judge Steve Moloney
Judicial Advisor

Steve, a gentleman and a scholar, a friend and an adversary, became my hero when he decided to dedicate the rest of his life to preserving the jury system. He will be dearly missed. Rest in peace Steve.

Judge Patricia O. Alvarez
Judicial Advisor

I feel so fortunate to have had lunch with Steve in February, just before all this madness began. He had recruited me to go to New York to be a presenter for the Civil Jury Project. That opportunity did not occur, but I am committed to fulfill my promise to Steve to work on this project.

This will be just one of the many legacies he leaves behind. I am honored that he asked me to be a part of this legacy. His vision will live on.

Judge Vanessa Gilmore
Judicial Advisor

I am very sorry to learn that this engaging gentlemen has passed away. Steve had such enthusiasm for the jury as a democratic institution. My condolences to all who knew him well.

 Judge Joan Lefkow
Judicial Advisor

Steve was a champion of the civil jury. He brought so many people together—judges, lawyers, academics, and policy makers—to try to make change. Steve gave of his mind, time and money—not many people can do all of these things. I’m thankful of all of his efforts. We will miss him so much.

Professor Suja Thomas
Academic Advisor

Steve’s passing is a loss to the legal profession but we cannot let it be a setback in the furtherance of promoting the constitutional right to a jury trial, a right that he honored and held so dear through his creation and work on The Civil Jury Project.

Patrice Truman
Jury Consultant Advisor
I was shocked and deeply saddened to learn today of Mr. Susman’s death. What a huge loss to the legal community of this nation. My contact with him was via the Civil Jury Project and an article I wrote for the newsletter, but his bubbling enthusiasm and intelligence permeated his writing and clearly inspired the talented staff of the Jury Project. My deepest condolences to his family and colleagues.

Judge Catherine Shaffer
Judicial Advisor

One comment Steve made stays with me: that lawyers starting today could never have the kind of litigation career he and lawyers of his generation enjoyed. There were many reasons for this but chief among them, in Steve's judgment, was declining faith in, and use of, the civil jury--a legal institution he prized and trusted almost above all else. He made it his personal mission to defend what he saw as a vanishing institution.

Professor Jeffrey Abramson
Academic Advisor

I am saddened to hear of the loss of Steve Susman. I only met him in person once. He had such high energy and drive. I greatly enjoyed the presentation that he did in Chicago last year with Judge Clare McWilliams. This is a heavy loss for our profession.

Judge Rena Van Tine

I join the chorus of mourners at the news of Steve Susman's death. I met Steve in the mid-1990s when I was seeking his law firm's financial support for a national research project by the National Center for State Courts (NCSC) on how trial judges across the United States manage jury trials. He was eager to support our efforts and went so far as to enlist the financial support of other successful trial lawyers in Texas. His enthusiasm for the project was instrumental in producing NCSC's State of the States survey. He has been a grand promoter of trial by jury ever since. The entire legal profession owes a debt of gratitude for the life of Steve Susman. I extend my condolences to his family and professional colleagues at Susman Godfrey and NYU's Civil Jury Project.

Judge Gregory E. Mize (Ret.)
Judicial Advisor

I am deeply saddened with the passing of Mr. Stephen Susman, founder of the prestigious law firm Susman Godfrey. I came to know Mr. Susman as part of his lead role in the Civil Jury Project at NYU School of Law. Just this past year, I was honored to serve with him on a panel presentation in San Antonio, Texas. As a long-time judge, even I learned a few things about jury trials. He will be sorely missed. He was truly an Officer and Gentleman of the Court. May he Rest in Peace. 

Judge Peter Sakai
Judicial Advisor
Look out for the September Newsletter!
Tune in next month for more articles by our judicial, academic and jury consultant advisors.
Contact Information
Civil Jury Project, NYU School of Law
Wilf Hall, 139 MacDougal Street, Room 407, New York, NY 10012
F ollow Us
Stephen Susman
Michael Pressman
Research Fellow
Samuel Issacharoff
Faculty Director
Michael Shammas
Research Fellow
Mark Drummond
Judicial Director
Kaitlin Villanueva
Admin. Assistant