Much time and attention has been spent examining ways to improve how lawyers can more effectively educate jurors in complex product liability trials. Many, if not most, of these efforts focus on "the hammer" – ie, the persuasiveness, credibility and clarity of the lawyers and of the witness presentations. But there is potentially another way to improve lawyers' persuasion of jurors at trial: focus on informing and honing the thinking of the jury. Even an effective hammer benefits from sharpened nails.
We can and should work to develop jurors who are better prepared and better equipped to carry out the difficult tasks we place before them. This article takes a look at eight ways to sharpen jurors' abilities: to help them become better students in the courtroom and, hopefully, mitigate some of the skepticism voiced by lawyers and clients in an era of dwindling product liability and other complex jury trials.
The decline of civil jury trials
The decline of the American civil jury system continues unabated, and it has not gone unnoticed. The statistics about the diminishing role of juries in resolving civil disputes in federal courts reveal a long and unambiguous trend. Of the 295,574 federal civil cases terminated in 2017, only 2,595 (0.9 percent) resulted in a jury trial. This is less than half of the already low rate from the first half of 2001, when, of the 248,277 federal civil cases terminated, 3,747 (1.5 percent) resulted in a jury trial. The trends for product liability jury trials are no different. Of the 1,110 cases from 2017 classified as "Other Personal Injury," which includes product liability cases, only 52 (4.7 percent) reached trial.
The reasons for this trend and the prospects for change have been extensively discussed. For example, Joe Cecil, Valerie P. Hans and Elizabeth C. Wiggins have identified several factors as contributing to the decline, including dwindling confidence in the ability of laypersons to understand complex issues, as well as a broadening in scope of summary judgment motions. Other commentators point to the decline in confidence in the American jury system and its costs to the litigants and the public at large. The loss of a viable jury system would drastically and negatively affect the civil justice system and undercut one of the pillars of our participatory democracy.
Empowering jurors – tried, tested, TBD
There have been many suggestions for how to empower jurors in order to improve the civil justice system. Some of these approaches are already in practice but are not widespread; some have been tested but not implemented in any significant way; and some may be implemented in the future. Of the many suggestions we have reviewed, we believe that the following group of eight deserve closer attention:
1) Preliminary substantive instructions and verdict form
Jurors in a civil jury trial are typically not given instructions on the substantive legal principles of the case until after closing arguments, just prior to deliberation. However, providing preliminary substantive instructions would help give jurors a substantive foundation on the issues. Susan J. Macpherson and Elissa Krauss, founding members of the National Jury Project, note: "If jurors begin a medical negligence trial with an accurate understanding of the health care provider's duty, they won't look for evidence of intent. In a products liability case, learning what the plaintiff is legally entitled to expect from a defendant manufacturer can help jurors put their ideas about assumption of risk in proper perspective." Preliminary substantive instructions, as well as a preliminary verdict form, also can address the problem where "jurors are often left to speculate about what questions they will have to address" as the trial is taking place.
2) Taking notes
Jurors are often encouraged by judges at the outset of the case to take notes during the trial, especially in complex cases. For many, taking notes is an effective learning tool, and these notes may be helpful in reducing the possibility of inaccurate recollection of testimony by a juror. A mock jury conducted in 2004 found that 92 percent of mock jurors believed that notebooks helped them remember and understand the case.
But notes are also a concrete form of selective memory. And, in the hands of certain jurors, they become a forceful persuasive device during deliberations. Warnings from the court about the proper use of notes may be helpful, but offering a bit of instruction on how to take notes, as part of the jurors' orientation, may also be useful. In addition, giving jurors structured notebooks, with appropriate dividers and headings, may be a way to level the playing field.
Beyond simple note-taking tools, lawyers should consider more modern options, such as giving jurors access to interactive tablets to use for note keeping, and finding suitable ways to use artificial intelligence to assist jurors in maintaining and retrieving the evidence they hear and see during trial. Today, most people understand the basics of computer use; but while we have computerized most of our lives (including the courtroom), we have not taken advantage of computers in the jury room. Allowing jurors the use of appropriate AI – for instance, teaching them how to search for trial testimony and admitted exhibits, or allowing them to query the judge – would allow more efficient deliberations.
3) Improving jurors' understanding of experts
The use of testimony, especially by expert witnesses, to educate jurors about complex issues is critical to complex product liability trials. But this method has its pitfalls. Some juries, and even some judges, are unable to separate science from fantasy. This can result in enormous awards based more on the jury's sympathy than on credible scientific evidence.
A number of approaches might improve jurors' understanding of experts. Some possibilities: 1) provide a neutral tutorial about expert testimony at the outset; 2) allow the experts to engage in a roundtable discussion facilitated by the court or a court appointed master; or 3) give the jurors an opportunity to submit written questions to the experts, to be asked by the facilitator or judge. If there is a concern about the roundtable discussion getting out of hand or wandering into irrelevant matters, the discussion could even be taped in advance, like a trial deposition.
In many complex product liability cases, judges use the authority granted to them under Federal Rule of Evidence 706 to appoint neutral expert witnesses. Rule 706 provides that "[t]he court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. "These witnesses "offer a non-evidentiary form of education to promote informed judicial decision making."
Finally, one other potential option to improve the teaching of jurors is to have the expert witnesses, on direct examination, discuss the merits of a case without questions from the parties' attorneys. This uninterrupted narrative might allow for greater clarity. Experts could then be challenged with questions in the typical Q&A cross-examination. This avenue would, however, present its own logistical challenges with respect to objections and other evidentiary issues.
Many product liability cases can take several weeks to try to a jury. Yet our civil system expects jurors to rely solely on notes and their own memory to recall testimony that took place at the very beginning of the trial. Especially in lengthy trials or trials that are interrupted by holiday breaks, attorneys should request the opportunity to provide "mini-summaries" at appropriate points in the trial to reacquaint jurors with key testimony and refresh their memory
5) Shorter trials
Long trials, indeed, are an impediment to jury service and to learning and using the evidence presented. Some courts have adopted the approach of timed trials, and their continued use would suggest they have proven to have a beneficial effect on jurors' willingness to serve as well as their attentiveness during trial.
Another interesting approach is used in Texas, where an expedited jury trial system was instituted on March 1, 2013 via House Bill 274. The Texas Supreme Court promulgated rules making mandatory a summary, expedited process for certain cases in which the recovery sought did not exceed $100,000. We recommend that other jurisdictions pursue this option at the state level.
6) Beyond PowerPoint – bringing audio and visual teaching up to date
We live in a visual world, but jurors for the most part must learn the facts about the case at hand by reading courtroom exhibits or listening to testimony. Moreover, television shows set in courtrooms have created an expectation in jurors that a trial is a compelling, dramatic performance. How can we reconcile how jurors learn outside the courtroom, and their expectations about courtroom events, with their actual experience during a trial – their need to learn and then consider what they have learned?
While the rules of evidence and a fundamental sense of fairness may impose limitations on how engaging visual images and demonstrations can be, there seems to be much room for improvement. The use of PowerPoint and other audio-visual technology keeps lawyers current and connected with tech-savvy jurors. But other tools are already available for lawyers to improve and elevate presentations to jurors. The most familiar of these are the courtroom presentation software packages, such as Sanction, Summation or Visionary, which allow the trial team to efficiently call up exhibits, PDF documents, audio, video and other media during presentation. We recommend that litigators familiarize themselves with these tools, and deploy them.
7) Expanding voir dire
While the primary objective of voir dire is most often to gain insight into the relevant experiences and personal biases of potential jurors, it can also be an important time for teaching and empowering jurors themselves. In particular, the use of expanded voir dire can be a very useful tool in improving jurors' self-awareness – helping them understand why they may be predisposed to feel a certain way. A number of researchers and jurists have noted that expanded voir dire can provide prospective jurors with some level of self-awareness about the influence of their emotions on their decision and the level of hard work it takes to work through those emotions. In addition, the use of individual voir dire and written questionnaires, rather than panel voir dire, may elicit more honest answers. One case study of voir dire observed that it "is thought that jurors typically speak more freely in the individual voir dire setting than in the peer-pressured setting of panel voir dire, and that the court and counsel can press jurors more effectively in this private setting without fear of embarrassing a juror in front of his peers."
There seems to be a trend away from extensive lawyer voir dire because many judges seem to feel that lawyers misuse the privilege, that the selection process is unfairly impacted and trial time inefficiently consumed. However, short judge-controlled voir dire may actually increase, rather than reduce, the risk of runaway jurors, which is one of the anxieties underlying the trend away from jury trials. It is important to consider the benefits of reversing the trend and returning to more extensive lawyer-directed Q&A.
8) Better – and required – pre-trial training for jurors
Some jurists have suggested that jurors should be required to take a pre-trial certification course that would familiarize them with the type of thinking they will have to do as jurors. Providing the means for prospective jurors to take required certification classes on juror skills would follow the civic model we already use for drivers, lifeguards and teachers, to name a few. Advanced orientation and training might also provide a way to address the anxieties many jurors feel about jury service.
Admittedly, it would be difficult to offer incentives to encourage participation in such training: how many people have the time to take such a course? Would they be offered compensation for taking the course? And how would such a course be funded? But, again, if the goal is to create an online juror-certification course, technology may help.
Other related options to make jury service less onerous, such as allowing jurors to identify in advance times they can serve, should be pursued as well.
In a world where civil trials are increasingly rare, the ability of jurors to understand a case becomes even more essential. The options outlined above strike us as some of the better options available (or possibly available) to educate jurors and "sharpen the nails."
*Dan Cooper is an attorney and litigation consultant with Litstrat Inc.
An earlier version of this alert appeared on Law360 on September 24, 2018.