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We, the jury: the IADC-backed National Jury Trial Innovations Project.

Most Americans have limited knowledge of the jury system in the United States. When they see a mention of the jury or jury trials, more likely than not the impression is not a favorable one. They read about one group of jurors finding O.J. Simpson not guilty of murder and another jury finding him guilty of the same crime--never mind the differences between criminal and civil proceedings and varying evidentiary rules of admissibility.

They receive a jury service summons and groan at the thought of being yanked from their daily lives to sit in a sterile environment of walls and tables, wasting time while the odds suggest they will not be selected. Should they hit the jackpot and serve on a jury, they don't view it as a win at all, but a burden of lost time and possibly lost income, while opposing lawyers seek to put on winning performances. Those who have served may feel a sense of accomplishment, but all too often it is an arduous, unfriendly system in which they have participated, with seemingly no hope of improvement in sight.

A brief look back

Because jury trials are becoming less ubiquitous, Americans have almost no background and little exposure regarding their importance to the justice system. Nor do they have an appreciation of how the jury system evolved to become a cornerstone of what is deemed the pursuit of justice in America. Because the American system of law is based largely on English common law, there are seemingly few indigenous roots to uncover.

Ironically, when the phrase "jury of our peers" surfaces in conversation or print, it has much more meaning for the past than the present. It was in medieval times that local juries in the various shires of England were assembled from villagers familiar with the defendant, the plaintiff and the alleged offense--situations anathema to the American jury system. Those "peers" also brought to the trial their own beliefs, prejudices and understanding of the lives of those on trial. Again, this is quite the opposite of the proverbial "blank mind" the American juror is supposed to bring to a trial, free of prejudice or knowledge of the case or the people involved.

It might be shocking for a present-day juror, let alone a judge or lawyer, to consider that in medieval England jurors were expected to investigate the facts, talk to the parties involved and discuss the issues at hand before the case.

The American jury developed from this model, dropping or picking up baggage along the way. Jurors slowly became judges of facts, rather than witnesses of facts. Eventually, the jury developed into a more passive panel, with no involvement in the trial proceedings. As judges, they were supposed to listen, Solomon-like, to all arguments and weigh all evidence before arriving at a just decision, with no active participation. This meant taking on a role they would never assume in "real life"--an unquestioning, unimpressionable, non-argumentative, silent individual making a decision normally requiring numerous questions, varying and changing impressions, constant arguing and disputing and highly vocal involvement.

As Alice said on her journey through a strange land that defied normal human experience: "Curiouser and curiouser."

Need for change

Today's jury process, from the time a juror is summoned until the time a verdict is reached, is not geared for jurors' needs or behavioral patterns. Rather, it is designed to accommodate the rules governing the conduct of lawyers and the admissibility of evidence. These rules often inhibit jurors from processing information or making decisions in the same way they would in their everyday lives.

While many studies and conferences in recent years have dealt with the need to improve the jury system, a turning point occurred in June 1992 at a three-day symposium, "The Future in the Civil Jury System in the United States," in Charlottesville, Virginia, sponsored by the American Bar Association and the Brookings Institution. Attendees included judges, litigators, researchers, trial consultants and representatives of insurance industry and consumer groups.

What became apparent at that conference was a myriad of studies on juries and jury trials have all pointed in the same direction: Traditional jury procedures have largely failed to take into account how juries process information and make decisions and have forced jurors to act contrary to their natural tendencies.

Decision making processes

Jurors are people. They do not, once selected as jurors, suddenly become the objective, fair-minded individuals the courts ask them to be. They bring to the jury their own backgrounds, prejudices and processes for making decisions.

Jurors create stories to understand the evidence they are asked to consider. This helps put information into a framework that makes sense to them, a framework that includes their attitudes and beliefs. Outside the courtroom, this process usually involves interacting with others to create and understand a story and obtaining information to help formulate the story. People use facts to fill in the gaps in their stories so they can make sense of it. All of us ask questions, probe for new details and talk to others who may be pondering the same issue.

In a court of law, allowing this decision-making process to occur during a case is not always the case, so to speak. For the most part, jurors are not allowed to ask questions, either of witnesses or of opposing attorneys. Nor are they permitted to talk to each other before deliberations. In many jurisdictions they cannot take notes, which would help remind them of facts they deemed important for filling in the gaps of their stories. If they cannot get their questions answered, they will use their own attitudes and beliefs.

Studies show that jurors do not wait until the end of a trial to form opinions; they do so along the way. Information that is most consistent with a juror's beliefs and expectations is more readily processed and remembered. Jurors also change their opinions during a trial. They are far more open-minded than many trial experts believe. And the more jurors can be actively involved in a trial, the better they can process the information and make an informed decision. But their active involvement--note taking and asking questions, for instance--is not the rule.

Where's the correlation?

Research suggests that attitudes and behavior often do not correlate when jurors make decisions. A juror may have a particular attitude about something but will behave contrary to that attitude in order to avoid looking incorrect or controversial before others. Peer pressure can force behavior that is counter to one's attitudes, whether in the jury deliberation room or the workplace. However, informational influence can help overcome this. Providing critical evidence that is clear, concise and timely--and allowing jurors to weigh it, ponder it and ask about it--can influence a juror's attitude and ultimately how they make decisions.

But again, this is not usually the juror's experience. Courtroom language is steeped in legalese jargon or sometimes in scientific language that is unintelligible to most jurors. It's just not in plain English. Rather than sitting through timely and brief segments of a trial where important information is framed and explained when needed, jurors often find themselves in a trial with no time limits for attorneys to present their cases. Jurors may not even know why a particular witness is sitting on the stand, something that could be rectified with interim commentary in which attorneys could explain briefly who the person is, why he or she is there, and what the testimony will be about.

Finally, jurors have requirements that need to be respected. They are being asked to take on an unfamiliar role with potentially dire consequences to the parties involved. Jurors need an environment that is friendly, stimulating and conducive to decision making. And they need to understand the process simply and quickly, with their questions anticipated and answered.

From research to practice

These decision-making concepts and many others were discussed at the Charlottesville conference and led to the development of a manual on trial innovations, Jury Trial Innovations, which was prepared jointly by the Jury Initiatives Task Force of the American Bar Association Litigation Section and the National Center for State Courts, with major funding from the State Justice Institute. The manual is edited by G. Thomas Munsterman, Paula L. Hannaford and IADC member G. Marc Whitehead.

It was completed in 1997 and disseminated to judges and lawyers throughout the United States. The manual offers some 60 jury trial innovations, all of which have been implemented or considered by various courts in the United States. At the same time, the Litigation Section's Task Force on Civil Trial Practice Standards began developing guidelines for certain innovations not fully addressed by rules of evidence or procedure. These were published in February of this year.

The manual suggests ways to improve jury trials from the arrival of a potential juror to the debriefing and exit procedures. The suggestions are focused on helping the juror understand the evidence, apply the law as instructed by the judge and make more informed decisions. Innovations include pretrial limits on each party's time, jury tutorials and notebooks, one-day/one-trial terms of jury service, juror questioning instructions, avoiding legal jargon, opening statements to the entire jury panel, and written or recorded juror instructions.

IADC-backed Innovations Project

A manual is not enough, however. Such innovations as juror note taking, asking questions of witnesses, interim commentary, lawyer-conducted voir dire and juror discussions of evidence during the trial have to be explained and discussed before the legal profession.

The National Jury Trial Innovations Project was developed by the Institute of the Foundation of the International Association of Defense Counsel, which works on projects to improve the civil justice system and better understanding of the law. Based on the ABA manual, the aim of the IADC Institute's National Jury Trial Innovations Project is to work personally with lawyers and judges nationwide to introduce the innovations.

The project involves one or more team leaders in each state, all of whom are members of the IADC, who each work with a small team of lawyers and judges, including members of the plaintiffs' and defense bars, to arrange presentations before state and local bar associations and judicial conferences. Each team concentrates on discussing those innovations of most interest to a state or jurisdiction.

Because each state or jurisdiction is most likely already involved in using or testing certain innovations, the program is modular. Each team can decide which innovations are relevant--and possible--for a given jurisdiction. Videos illustrating certain innovations and a computer-based slide presentation are customized and used at each venue.

Program has seven segments

The program is composed of seven segments:

* How jurors make decisions;

* Setting the framework;

* Jurors should be actively involved;

* Enhancing the decision-making process;

* Improving a juror's frame of mind;

* Insights for jurors, lawyers and judges; and

* How to improve the civil justice system.

An opening video, "Order in the Classroom," has been an effective introduction to the project. Shot at the University of Colorado in Boulder earlier this year, the video shows a college classroom that is run using the rules of a traditional jury trial. There is no note taking, no questions, no idea of what the course is about, no notion of its length, no discussion among students, and so on. The first reaction to the video by the students themselves was dismay that this was "their" jury system.

Following the first presentation of the "classroom" video and several innovations at the IADC midyear meeting last February, Judge B. Michael Dann of Arizona, a proponent of jury trial innovations who participated in the program, discussed changes in his state and lauded the project teams as crucial to bringing about a user-friendly jury system.

The "classroom" video also has received favorable response at programs of the American Judicature Society, the Defense Research Institute, the Association of the Bar of the City of New York and the University of Michigan School of Law. C-SPAN, the public affairs cable network, ran an excerpt from it during a report on jury trial reform. The National Jury Trial Innovations Project is currently arranging its programming nationwide for 1998 and 1999.

The jury in America

It has become apparent to friend and foe of the legal system in America that the system has not done justice to the very group of people being asked to mete out justice--jurors. Positive changes have been made in parts of the country to meet juror needs and to help them make more informed decisions. The National Jury Trial Innovations Project is an attempt to move the needle faster and with a broader sweep, bringing together the lawyers and judges who rely on jurors to make the justice system work.

The jury trial in America today has ventured far from its medieval model. What has remained the same through the centuries, however, is the desire of both parties in a legal proceeding to receive a fair hearing and obtain a decision based on the best efforts of fellow citizens sitting in judgment. Making the jury trial more accommodating to human decision making is something all parties can agree upon.

The National Jury Trial Innovations Project, as well as other efforts taking place across the country, will facilitate offering evidence that is more available and understandable and in an environment in which jurors can make more informed decisions.

(Mark R. Horowitz is a marketing communications consultant and writer. IADC member Jay H. Tressler is a founding partner of Tressler, Soderstrom, Maloney & Priess in the Chicago office. IADC member Gregory C. Read is a senior partner of the San Francisco office of Sedgwick, Detert, Moran & Arnold. All are members of the board of the Institute of the IADC Foundation, which is sponsoring the National Jury Trial Innovations Project. Information about the project can be obtained from Ed Christensen at (312) 368-1494.
COPYRIGHT 1998 International Association of Defense Counsels
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Title Annotation:International Assn. of Defense Counsel
Author:Horowitz, Mark R.; Tressler, Jay H.; Read, Gregory C.
Publication:Defense Counsel Journal
Geographic Code:1USA
Date:Jul 1, 1998
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