Jury Duty, Technology, Trials

Why What I Do Is Everything Wrong With The Jury System

After being in about 30 jury trials, legal technology columnist Jeff Bennion has decided that the system is kind of messed up.

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I’ve spent about 50 hours this year so far taking CLE classes on the psychology of juror persuasion. It’s something I’ve been fascinated with since I got my first legal job over 10 years ago. When I was a law clerk, I used to go to trial with my bosses and do things like watch jurors’ reactions to certain types of evidence – do their eyes move between witness and attorney after each question-answer exchange? When I put an exhibit up on the screen, do they look at it? How long do they look at it? Are they taking notes? After being in about 30 jury trials, I’ve decided that the system is kind of messed up.

How Trial Lawyers Are Different – Getting Jurors In Your Favor

A lot of lawyers have to be able to convince, but trial lawyers have to do it a little differently. Let’s take, for example, a lawyer drafting a motion for summary judgment. The finished product with exhibits and declarations from experts is about 1,000 pages. That same case goes to trial and you have the same thousand or so pages of exhibits, but you only use about 100 pages during the 10-day trial. Why don’t you use the entire thousand? They were obviously important enough for you to copy them for the court and for opposing counsel and to reference them in your motion. The answer is this: in the first instance, you are trying to convince someone with about 30 years of legal experience and post-graduate education why you win. In the second instance, you are trying to break it down to about a 7th grade level to people who have no legal training and are fighting to find a reason to care about your client’s problems. When I say a “7th grade level,” I don’t mean that jurors are as dumb as 13-year-olds, I mean that it’s scientifically proven that the sweet spot for maintaining their attention is to keep it from about a 5th to 8th grade level of complexity. This takes the focus off of being right and moves it more to who can be a better story teller. Trials are not just about who is right. I’m not saying that trial lawyers don’t tell the truth or don’t try to make correct arguments, I’m just saying that on top of being right, they also have to focus on the second important part of their jobs – being able to explain their cases to children.

This is a core tenet of the American justice system and I think that’s kind of weird. I think it’s weird that lawyers should take public speaking and acting classes to get better justice for their clients. I think it’s weird that people write books about things like what it means for your case when a female juror has her hair in a pony tail vs. wearing it down. I think it’s weird that the people deciding cases are like the jury in Australia that went almost 90 days in a drug case, only to reveal that several of them had been having a Sudoku contest during witness testimony the whole time because they were bored. I think it’s kind of weird that jury consultants will prepare a report for our team telling us that our jury pool is 40% Hispanic, 20% Asian, and 40% white and how we should handle that. I think it’s weird that jury consultants even exist. Imagine hiring an investigator to tell you detailed biographical data about your judge so you can change your legal arguments accordingly. But that’s the system and failing to be an engaging storyteller can have dire consequences.

The Moment I Realized that What I Do Is Wrong

In helping to work up cases for trial, I like to create a lot of graphics. I think they are the best way to tell a complex story in a simple way. We had a case where our client had no license and was driving in the wrong lane when he crashed head-on into a grandma who was on the way home from work. We disputed liability (course and scope) and damages. I created the following exhibit in Microsoft Word while we were developing case themes and we ended up just using it in trial:

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We got a defense verdict on liability, so the questionable future meds were never an issue. But the whole point of the chart was to cast some doubt on the credibility of the whole Plaintiff’s case. We know it worked because we talked to the jury afterwards and they told us so. We do things like that all the time – flash animations to reconstruct accident scenes, charts and graphs, medical illustrations, etc. Anything to simplify the story and maybe dazzle them a little bit with some neat tricks. Or magic…

I went to watch a friend of mine in trial a few months ago. It was a products case against a big law firm. The client was prescribed a medical device by his doctor. He ignored the prescription and used the product the way the big warning labels on the device said to not use it, and then sued because he was injured by using it wrong. The theory was that the manufacturer should have used more safeguards to prevent misuse or better advertised the consequences of misuse. I thought it was a pretty weak plaintiff’s case, but my friend told a very compelling story in opening. Then, the defense “trial attorney” from the big firm gets up. He walked up to the screen and began his hour-long PowerPoint slide show, spending about 80% of the time with his back to the jury as he stood there and pointed to things in his slides. It was really bad and I was pretty sure how the case would turn out. It ended in a very favorable settlement right before they turned it over to the jury, in large part because they could see they were just not as good at storytelling.

What to Do About It

I don’t have a better solution. I don’t think we should abolish juries, nor do I think attorneys should stop focusing on persuasive public speaking tips. It’s an imperfect system, but I certainly can’t think of a better one. The only thing we can do is to play the persuasion game. Sharpen your presentation skills. Go to YouTube and watch tutorials on how to make timelines or charts and graphs for your case. Focus on storytelling. Learn what you can do to impress juries in the courtroom with simple technology tricks to entertain and educate. Right now, those are the rules of the game, so just follow them.

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Jeff Bennion is Of Counsel at Estey & Bomberger LLP, a plaintiffs’ law firm specializing in mass torts and catastrophic injuries. Although he serves on the Executive Committee for the State Bar of California’s Law Practice Management and Technology section, the thoughts and opinions in this column are his own and are not made on behalf of the State Bar of California. Follow him on Twitter here or on Facebook here, or contact him by e-mail at jeff@trial.technology.

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