Dear Readers,
Welcome to the March edition of the Civil Jury Project’s monthly newsletter.
This issue continues a section of the newsletter—re-launched in our last issue—that contains testimonials from recently discharged jurors.
In addition, this issue features pieces by a judicial advisor, an academic advisor, and one of our research fellows. The first, by the Honorable Catherine Shaffer, outlines some "tricks of the trade" that she has learned since first becoming a judge twenty years ago in King County, Washington. The second, containing research results from Professor Christopher T. Robertson, analyzes what effect blinding experts has in juror perceptions of those experts. And the third, by research fellow Michael Shammas, discusses findings in a December law review article suggesting that experts may be less accurate than jurors in evaluating questions implicating public policy--at least with regard to just compensation determinations.
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
.
|
Sincerely,
Stephen D. Susman
|
|
March 19, 2020
State Judges Workshop
New York, NY
March 20, 2020
Federal Judges Workshop
New York, NY
March 26, 2020
Jury Improvement Lunch
Boston, MA
April 1, 2020
Dinner Event by the Combined Minneapolis Inns of Court: "Jury Trial Innovations"
Minneapolis, Minnesota
April 2, 2020
Speech at the Harvard Law Forum:
"The Disappearing Civil Jury Trial: What Can Be Done About It?"
Cambridge, MA
May 20, 2020
Jury Improvement Lunch
Fort Lauderdale, FL
|
|
|
|
Some Tricks of the Trade from a Civil Trial Judge
|
By the Honorable Catherine Shaffer
|
|
|
|
Though it surprises me to realize how much time has gone by, I became a Superior Court (general jurisdiction) judge in King County, Washington, twenty years ago, in 2000. Luckily for me, that was also the year that the Washington State Jury Commission made its report on recommended jury practices, based on its own research and research by jury commissions in other states. I took the report very seriously, and it has shaped my practice in civil cases ever since. Most of the “tricks” I discuss in this article were drawn from that report.
[1]
In every civil case tried to a jury in my court, I conduct a detailed Civil Rule 16 conference, with the lawyers attending in person, usually meeting with me in my jury room. If the case is straightforward, I generally do this on the Friday afternoon before the trial begins on Monday. If it is complex, the conference occurs six to two weeks before trial. I have three principal objectives at these conferences: 1) to acquaint the lawyers with my jury practices; 2) to get a detailed witness by witness estimate of the time needed for trial, from which I create a schedule for the jurors; and 3) to get the lawyers to provide me with an “agreed” set of jury instructions that both sides want, from which we can draw advance introductory instructions for jurors. At these conferences, I show the lawyers a humorous video about an imaginary class where students are not allowed to take notes, are not told what will be on the test until the end, must listen to teachers talk about complex subjects without being allowed to ask questions and are required to look at visual items at the same time teachers are speaking about other topics. It’s a great way to get lawyers thinking about helping the jury understand their case.
[2] I also have the lawyers come out with me to my courtroom and sit in my jury box. This really helps the lawyers to get a sense of how challenging it can be for jurors to see, and tends to greatly improve the visibility of exhibits. And I show the lawyers a sample juror notebook so they can start to think about how to work with the notebooks.
What are these notebooks she is talking about, you may be wondering? In every case, whether criminal or civil, each juror in my court upon empanelment in the jury receives a three ring notebook. The front of the notebook bears the juror’s number. In the front pocket of each notebook is a stenographic pad with the juror’s number, and a pen. The first document in the notebook is the case schedule, which shows the hours each day we expect to be in session, the date the case is expected to go to the jury for deliberation, and the times we normally take breaks. It also shows my name, courtroom number, and court telephone number, and we provide the jurors with their own copy of these schedules on request, redacted to remove the case name and number. The next item in the notebook is a list of potential witnesses. In every notebook we also provide the standard preliminary instruction, which includes standard language on note-taking, so that the jurors can follow that instruction as I give it to them, if they choose. In each case, at the end of the case, we give each juror in their notebooks a copy of the final instructions. And in civil cases, the final pocket of the notebook holds the standard forms that my state uses for jurors posing written questions to witnesses.
In civil cases, I also encourage the lawyers to use the juror notebooks for other items as well. In complex cases, it can be extremely helpful to provide jurors with special items, such as agreed glossaries of specialized terms, agreed chronologies of events, or agreed corporate organizational charts that show witness titles. I very strongly encourage lawyers to look at their agreed jury instructions and to consent to allow the jury to be instructed on agreed important definitional instructions. For example, it is very useful in cases involving alleged negligence to advance instruct the jury on the standard definitions of negligence and proximate cause Understanding these terms helps jurors see the relevance of evidence as it is presented. Similarly, it is worthwhile to advance instruct the jurors on the need to treat corporations and individuals in the same fair and unbiased way. Instructing in advance on assessing expert witness testimony is helpful. In fact, it is surprising how many of the final instructions are agreed by all parties, and how many can be useful as advance instructions to orient the jury on key legal concepts. I do not force lawyers to agree to advance instructions, but the video footnoted above is persuasive as to why they often will choose to do so.
|
|
Finally, it is always worthwhile for lawyers to consider making copies for the jurors of admitted exhibits that will often be referred to during trial. Jurors often strain to see documents, even when lawyers have blown them up to sufficient size. And in the jury room in deliberations, twelve jurors each have to wait to see the single admitted exhibit in the admitted exhibit notebooks. To avoid these problems, I suggest to lawyers that as to some exhibits that will be referred to often in trial, such as the contract in a contract dispute, the key medical records in a medical negligence case, or the product documents in a products liability case, once a foundation has been laid and the exhibit is admitted, I will permit them to distribute three-hole punched copies of the exhibit to the jurors to put in their notebooks and view during trial when the exhibit is being discussed. To avoid stuffing the juror’s notebooks with huge numbers of exhibits, I suggest that for other, less frequently used exhibits, the lawyers simply distribute copies of the exhibit to jurors after they are admitted, allow the jurors to look at it while the exhibit is being discussed without putting it in their notebooks, then have the jurors pass back their copies of the exhibit for collection when the testimony moves to a different topic.
For those jurisdictions that, like mine, allow jurors to pose written questions to witnesses in civil cases, here is my procedure. I tell the jurors during my advance trial instruction, which includes specific language on the guidelines for posing such questions, that when live witnesses are called to the stand, they should remove their question form, put the name of the witness on the form, and jot down questions as the witness testifies. I tell them that many of those questions will be answered as the lawyers examine, and to cross off answered questions as they are answered. At the end of the witness’ testimony, whether or not the jurors have written anything on their form, they all pass down their forms for my bailiff to collect. This keeps juror questions anonymous. Then I review the questions briefly at sidebar with counsel to decide which will be asked. Then I pose the questions that will be asked to the witness. Then the party that called the witness asks follow up questions, followed by the party that did not call the witnesses. There are no further follow up rounds: the witness leaves the stand. Juror questions are filed with the court clerk.
I hope my fellow civil jury enthusiasts find these practices interesting, and perhaps helpful. There does always seem to be a slightly better way to build our civil jury trial mousetraps.
***
|
Catherine Shaffer
is a judicial advisor for the Civil Jury Project and a Superior Court judge serving in King County, Washington.
|
|
|
|
Analysis: "What is Just Compensation?"
By
Michael Elias Shammas
|
|
|
|
Are you entitled to a jury of your peers when the federal government wants to condemn your property? If so, who does a better job at accurately assessing a property’s value—juries or experts? Finally, who values property higher—government experts or laypeople?
The answers might surprise you.
***
The most surprising answers concern the second and last questions. If you want more value than you are owed, you might actually prefer the commission of government experts.
See
Wanling Su,
What is Just Compensation?
, 105 Va. L. Rev. 1483, 1529 (2019) (“[E]mpirical evidence suggests [that] government appointed commissions systematically misvalue homes [and that] commissions overvalue homes
as often as
they undervalue them.”) (emphasis added).
The least surprising answer concerns the first question, because if you care about the Seventh Amendment (like most readers of this newsletter), you should prefer a jury, as both the amendment’s plain language as well as the methodology used by courts in its application suggest that everyone should have a right to trial by jury in federal condemnation proceedings.
Unfortunately—even though the Seventh Amendment’s “historical test represents a rare instance in which the modern [Supreme] Court has come to almost complete agreement on methodology,”
id
. at 1535 (citing Darrell A. H. Miller,
Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second
, 122 Yale L.J. 852, 887 (2013))—citizens are often denied a jury in condemnation proceedings.
Indeed, despite broad agreement over the nature of the historical test—emphasizing that the Seventh Amendment “preserves” the right to a civil jury and therefore that, in analyzing what the amendment protects, one must look to what was protected in the courts of England at the time of the Bill of Rights’ 1791 adoption—courts have been inconsistent in application. As you may have already guessed, one area where this inconsistency is especially notable concerns the question of whether it is permissible for government agencies to determine “just compensation” in eminent domain cases.
The Historical Test
Such inconsistency is puzzling. As Wanling Su argued in December in an excellent law review article, the Seventh Amendment’s historical test clearly imposes a procedural requirement that a jury decide compensation in order for the “
just
compensation” requirement to be met.
Id
. at 1483 (emphasis added). If the historical test is applied correctly, a jury is not optional but mandatory. That is, the constitutional language puts forth not a suggestion but a
requirement
, and any fair examination of the history—like that in Su’s law review article—reveals that the substitution of government agencies for juries is flatly unconstitutional.
In her piece, Su persuasively and comprehensively corrects the “common misperception” that juries did not determine just compensation in eighteenth-century English and colonial practice.
Id.
at 1484. She argues that this misperception largely “stems from late nineteenth century dicta,”
id.
at 1487,
and that it has been wrongly codified in Federal Rule of Civil Procedure 71.1 (which gives district courts the right to deny jury demands). Unfortunately, such dicta are flatly at odds with “[t]he historical records documenting both English and American practice in 1791.”
Id.
at 1492. These records unequivocally show that English courts did not waive their “customary practice of impaneling juries when it came to takings.”
Id
.
Jurors versus Experts
Although most of Su’s piece analyzes the history of the Takings Clause, the most interesting part concerns not the historical basis for the right to trial by jury in condemnation cases but rather the empirical evidence showing that jurors do a better job than experts. Contrary to public opinion, Su finds that lay jurors come to
more
accurate conclusions than experts.
Id
. at 1530.
This finding is significant because the logic for why jurors are more accurate than experts applies to contexts outside just compensation. Indeed, an advantage that juries—all juries—have is that they are not repeat but one-time players. This means that unlike experts (repeat players), jurors do not have to worry about their reputation, which in turn allows for greater honesty and for more disagreement among jurors.
Thus, while
one
expert might be better than
one
layperson in deciding a complex issue such as the fair market value of a home, in group contexts lay jurors consistently make better decisions than experts. This superiority of laypersons to experts stems from the fact that disagreement heightens the likelihood that a group will come to an accurate conclusion, yet experts have less incentives to disagree than lay people because “[d]isagreement signals that at least one of the group members is wrong and [therefore] carries with it professional repercussions.”
Id.
at 1533. Needless to say, lay jurors do not have to worry about any such “professional” repercussions, and therefore (unlike experts) are not disincentivized to disagree.
Interested readers can find the entire article available for free
here
.
|
|
|
|
What Jurors Say
- “I really liked meeting people from every aspect of life and getting to know people, where they came from, and how different all of us were. Being able to meet new people and see how they felt about what we were doing as jurors, that was very enjoyable.”
- “If the tables were turned and if I were someone relying on a jury, . . . I would want them interested, paying attention, and buying in, and I think once you go through the process entirely as a juror, you can’t help but have the perspective that jurors are providing that to the parties.”
- “I felt very respected and I felt that we were very important to the process. I really enjoyed that feeling.”
- “You learn new things about how the legal system works and about how other aspects of society work. I really enjoyed it.”
- “I would like to be on another jury; I really enjoyed it. It is definitely worth it and I would do it again. I would highly recommend everybody do it at least once.”
For more testimonials, including video interviews, click
here
.
|
|
|
|
|
|
Look out for the April Newsletter!
|
Tune in next month for more articles by our judicial and academic advisors and testimonials from jurors who have recently finished serving on a civil jury.
|
|
|
|
Civil Jury Project, NYU School of Law
Wilf Hall, 139 MacDougal Street, Room 407, New York, NY 10012
|
|
|
|
|
Stephen Susman
Executive Director
|
Michael Pressman
Research Fellow
|
|
Samuel Issacharoff
Faculty Director
|
Michael Elias Shammas
Research Fellow
|
|
Mark Drummond
Judicial Director
|
Kaitlin Villanueva
Admin. Assistant
|
|
|
|
|
|
|
