TRIAL BY JURY—INTELLIGENTLY
How to Conduct a Jury Trial that Answers the Objections
Professor Stephen D. Susman
NYU Law – Fall 2015
COURSE DESCRIPTION
This course studies the jury at a critical moment in American history. Jury trials are vanishing, and juries have been the subject of sustained critiques at all levels – from the theoretical to the practical. This course answers these critiques by teaching how to conduct a jury trial that responds to these concerns.
Professor Susman is one of the leading trial lawyers in America and has devoted his life to demonstrating the intelligent way to pick juries and win trials. He established and is the Executive Director of the Law School’s new Civil Jury Project. This class will investigate why jury trials in civil cases are vanishing, debate whether this trend is good or bad, and learn and develop techniques for removing the most common objections to trial by jury. It will focus on how to try a case to a jury using innovative techniques.
Each class is framed around a long-standing, traditional criticism of the jury. These criticisms are then used as a mechanism to discuss and develop practical responses. The class will also spend time at the courthouse observing jury assembly and selection and debriefing juries.
Course Requirements and Evaluation
This is an upper level law class. You will be expected to prepare for class, and participate actively in discussions. Class participation will be a significant part of your grade. You are responsible for attending all classes. Attendance will be taken.
In addition, you are required to submit two pieces of original research and conduct one demonstration:
First, you are required to submit a two-page factsheet distilling information about the jury in America. These factsheets must be annotated and sourced providing up-to-date information about the jury today. For, example you could create a fact sheet about the number of civil juries in America, or the level of damage awards for particular cases, or the cost of jury trials, etc. The goal is to distill the factual reality of jury trials in America in an understandable and visual format.
Second, you are required to submit a ten (10) page argument responding to one of the traditional criticisms leveled at the jury. These criticisms will frame our weekly discussions and are set forth in the syllabus. Your ten page argument can be in the form of a legal brief or closing argument, demonstrating (with appropriate citation) why your argument is correct. Your assignment will be evaluated by its level of substantive research, persuasiveness, professionalism, creativity, and clarity.
Finally, you will be asked to demonstrate, for no more than 10 minutes one of the following: voir dire of a jury panel, arguments to the judge about adopting one of the agreements contained in my Trial Agreements, argument to the court over the content of appropriate jury instructions at start of trial, cross-examination of an adverse witness, or interim jury argument with demonstrative slides.
READINGS
Any required readings will be excerpts from the materials listed in the Schedule of Class Topics and Assignments below. I will provide you with the excerpts in advance of each class. There are no books to purchase; however, as suggested background reading, the following is a list of excellent books about the jury.
- Neil Vidmar & Valerie P. Hans, American Juries: The Verdict (2007).
- John Gastil, et al., The Jury and Democracy: How Jury Deliberation Promotes Civic Engagement and Political Participation (2010).
- Andrew Guthrie Ferguson, Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (2012).
- Jeffrey Abramson, We, The Jury: The Jury System and the Ideal of Democracy (1994)
- William L. Dwyer, In the Hands of the People: The Trial Jury’s Origins, Triumphs, Troubles, and Future in American Democracy (2002).
Course Objectives and Learning Outcomes
- Students will engage regarding the political, legal, and cultural values served by the jury.
- Students will engage in the contemporary debate surrounding the civil jury in America.
- Students will learn how to try a case to a jury.
- Students will master the legal rules governing trial by jury.
- Students will develop practical responses to traditional criticisms of the trial by jury.
- Students will be able to apply practical trial skills to jury selection and practice.
- Students will develop written arguments proposing jury innovations.
Contact Information
Stephen D. Susman
Partner
Susman Godfrey LLP
560 Lexington Avenue, 15th Floor
New York, NY 10022-6828
212.336.8331
Schedule of Class Topics and Assignments
Part I—Trial by Jury: The Debate
Class 1— Why Are Jury Trials Vanishing?
Plan: This introductory class will explore the explanations given for the vanishing jury trial, including: the relative weakness of the 7th Amendment protection, the objections to jury trials, the availability and relative benefits of alternative dispute resolution mechanisms such as mediation, arbitration and bench trials, the judicial creation of doctrines designed to protect parties from trial by jury (Twombly, Daubert, Markman, Matsushita and Comcast), the managerial judge, the expense and risk of trial, and a generation of litigators who have never tried a jury case.
Possible Readings from:
- Langbein, John H., Lerner, Renee Lettow, Smith, Bruce P., History of Common Law (WoltersKluwer, 2009)
- Mark A. Lemley, Why do Juries Decide if Patents are Valid?, 99 Virginia Law Review 1673 (2013).
- Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History
44 Hastings L.J. 579 (1993) - Sheldon Whitehouse, Restoring the Civil Jury’s Role in the Structure of Our Government, 55 Wm. & Mary L. Rev. 1241 (2014)
- Marc Galanter, A World Without Trials?, 2006 J. Disp. Resol. 7, 12 (2006)
- https://www.youtube.com/watch?v=oM6nwGPKX2Q
Class 2—“Civil jury trials are unnecessary in today’s legal system.”
Criticism: Although civil litigants need to resolve conflicts, civil jury trials are no longer the appropriate mechanism to resolve disputes.
Plan: Before class you will view the short films Lost in Fine Print and Hot Coffee. The class will start with a debate between Prof. Susman and another prominent lawyer who believes arbitration is better than trial by jury. After the debate, you will evaluate the arguments.
Possible Readings from:
- S. District Judge Xavier Rodriguez, The Decline of Civil Jury Trials: A Positive Development, Myth, or the End of Justice As We Now Know It?, 45 St. Mary’s L.J. 333 (2014)
- John H. Langbein, The Disappearance of Civil Trial in the United States, 122 Yale L.J. 524 (2012)
- Adam Skaggs, Buying Justice: The Impact of Citizens United on Judicial Elections (Brennan Center, May 5, 2010)
- Williams-Yulee v. The Florida Bar [the Supreme Court’s decision]
- John T. Nockleby, How to Manufacture A Crisis: Evaluating Empirical Claims Behind “Tort Reform”, 86 Or. L. Rev. 533 (2007)
Part II—Jury Selection & Composition
Class 3—“Jury selection mechanisms are intrusive and waste time.”
Criticism: Jury selection in the modern age requires invasive exploration of jurors’ personal lives. This exploration is time-consuming, unsettling, and unnecessary. The experience in the jury assembly room and during voir dire is so distasteful that many of the citizens summoned for jury duty do not report and those that do, try to avoid service.
Plan: The class will view YouTube snippets regarding jury duty, visit a jury assembly room, hear from those who have recently reported for jury duty, and observe voir dire in the state trial court.
Possible Readings from:
- Thaddeus Hoffmeister, Investigating Jurors in the Digital Age: One Click at A Time, 60 U. Kan. L. Rev. 611 (2012)
- Joseph A. Colquitt, Using Jury Questionnaires; (Ab)using Jurors, 40 Conn. L. Rev. 1, 17 (2007)
- Paula L. Hannaford, Safeguarding Juror Privacy: A New Framework for Court Policies and Procedures, 85 Judicature 18 (2001)
- Stephanie Clifford, TV Habits? Medical History? Tests for Jury Duty Gets Personal (NY Times, 8/20/14)
Class 4— “Lawyer-directed voir dire is unnecessary and time consuming.”
Criticism: Jury voir dire takes too long when conducted by attorneys. The result is that jurors become frustrated and disenchanted with jury service.
Plan: There will be a debate on whether voir dire should be conducted by the judge or the lawyers. Students will have studied an actual juror questionnaire. A jury consultant will explore whether questionnaires can be standardized, whether we could select a jury via the internet, whether larger juries would ameliorate the impact of restricted voir dire, whether a less-than-unanimous verdict would have the same effect. Students will discuss the object of voir dire – is it best used to “open the case” or to locate your problem jurors? How do you design questions to avoid identifying your best jurors? Mock voir dires will be conducted.
Possible Readings from:
- Reid Hastie, Is Attorney-Conducted Voir Dire an Effective Procedure for the Selection of Impartial Juries?, 40 Am. U. L. Rev. 703 (1991)
- Valerie P. Hans & Alayna Jehle, Avoid Bald Men and People with Green Socks? Other Ways to Improve the Voir Dire Process in Jury Selection, 78 Chi.-Kent L. Rev. 1179 (2003)
- Shari Seidman Diamond et. al., Revisiting the Unanimity Requirement: The Behavior of the Non-Unanimous Civil Jury, 100 Nw. U. L. Rev. 201 (2006)
- Jury Decision Making, 7 Psychol. Pub. Pol’y & L. 622 (2001)
Part III—Juror Comprehension and Competence
Class 5— “Intelligent, knowledgeable citizens don’t serve on juries.”
Criticism: Educated and professional citizens are routinely excused from participating in long civil jury trials. Many other jurors try to avoid jury service due to the financial, professional, or personal hardships. The resulting jury is a suboptimal fact-finder.
Plan: We will try to answer these questions: (1) how could we increase juror compensation? (2) could jury trials be shortened without compromising the result? (3) why don’t more courts impose time-limits? (4) how do you plan for and conduct a short jury trial?
Possible Readings from:
- Franklin Strier, The Educated Jury: A Proposal for Complex Litigation, 47 DePaul L. Rev. 49 (1997)
- Nancy J. King, Juror Delinquency in Criminal Trials in America, 1796-1996, 94 Mich. L. Rev. 2673 (1996)
- Evan R. Seamone, A Refreshing Jury Cola: Fulfilling the Duty to Compensate Jurors Adequately, 5 N.Y.U. J. Legis. & Pub. Pol’y 289 (2002)
Class 6—“Jurors can’t comprehend the facts or law in complex civil cases.”
Criticism: Modern jurors are unable to understand or decide complex civil cases. The cases that go to trial in the civil arena should be decided by well-educated and well-resourced fact-finders.
Plan: We will hear from trial judges and arbitrators in trying to answer: (1) Is there any empirical evidence that judges do better than juries in deciding complex civil cases? (2) Why do so many trial judges trust jurors while so many appellate ones are dubious? (3) Are juries in fact more unpredictable than judges? (4) Do arbitrators do a better job than jurors? (5) What has been learned from jurors’ comments post-verdict? [hopefully there will be an opportunity for the class to hear from jurors about their experience]
Possible Readings from:
- Joe S. Cecil, et al., Citizen Comprehension of Difficult Issues: Lessons from Civil Jury Trials, 40 Am. U. L. Rev. 727 (1991)
- Matthew A. Reiber & Jill D. Weinberg, The Complexity of Complexity: An Empirical Study of Juror Competence in Civil Cases, 78 U. Cin. L. Rev. 929 (2010)
- Richard C. Waites & David A. Giles, Are Jurors Equipped to Decide the Outcome of Complex Cases?, 29 Am. J. Trial Advoc. 19 (2005)
Part IV—Jury Trials in Practice
Class 7 and 8— “Trials are too long and expensive.”
Criticism: Civil jury trials are too expensive and the result is too uncertain
Plan: We will try to identify the expenses incurred in getting a case ready for trial by jury as opposed to a bench trial or arbitration and ask whether these expenses could be eliminated. We will ask whether shorter trials produce different results than longer ones. We will start to explore methods to improve jury comprehension during shorter trials, including:
- Plain English substantive instructions at the start of the trial [some students will be tasked with writing an example]
- Allowing jurors to ask questions [we will propose a model procedure after reviewing what is used around the country]
- Allowing interim argument by counsel [students will be asked to demonstrate]
- Allowing jurors to discuss the evidence before final deliberations
- Allowing jurors to conduct internet research on iPads furnished in the jury room
- Providing jurors with instructions on how to deliberate [prepare model instructions]
- Providing jurors, in the jury room, with computerized access to the exhibits and testimony as it is introduced
Possible Readings from:
- Stephen D. Susman, Thomas M. Melsheimer, Trial by Agreement: How Trial Lawyers Hold the Key to Improving Jury Trials in Civil Cases, 32 Rev. Litig. 431 (2013)
- Mark A. Lemley, Jamie Kendall & Clint Martin, Rush to Judgment? Trial Length and Outcomes of Patent Cases, 41 AIPLA Quarterly Journal 169 (2013).
- Michael Morrison et. al., Expedited Civil Actions in Texas and the U.S.: A Survey of State Procedures and A Guide to Implementing Texas’s New Expedited Actions Process, 65 Baylor L. Rev. 824 (2013)
Class 9— “Juries are too easily influenced by flamboyant and entertaining trial lawyers”
Critcism: The party with the best lawyer, rather than the best facts, is most likely to win a jury trial, and we do not have enough seasoned trial lawyers to represent both sides.
Plan: We will see demonstrations of effective cross-examinations and learn how to effectively do it. We will also consider how effective use of slides and demonstratives can level the playing field. A jury consultant will address the issue of whether the lawyer really matters.
Possible Readings from:
- Stephen D. Susman, Killer Cross – Yours and Theirs, PLI Trial by Jury Institute, November 19, 2014
- Stephen D. Susman, Closing Arguments, PLI Trial by Jury Institute, November 30, 2011
- Shari Seidman Diamond, Juror Reactions to Attorneys at Trial, 87 J. Crim. L & Criminology 17 (1996)
Class 10— “Juries are too easily influenced by experts.”
Criticism: A body of lay people cannot adequately evaluate the specialized and occasionally conflicting testimony of hired expert witnesses. The result is a “trial by expert.”
Plan: Is there evidence supporting the response that each side’s experts cancel each other out and that jurors do not decide cases based on expert testimony? By group deliberation, does the jury reach the right result even in cases as complicated as patent cases?
Possible Readings from:
- Amici Curiae Brief of Various Academics in Kumho Tire Co. v. Carmichael, U.S. Supreme Court (1997)
- Bert W. Rein, Kate Comerford Todd and John Eric Howell, Collisions of Expert Testimony: Why Rule 56 Should Be Amended, Related Publication 06-29 (October 2006)
- Neil Vidmar & Shari Seidman Diamond, Juries and Expert Evidence, 66 Brook. L. Rev. 1121 (2001)
- Valerie P. Hans (FN1), Judges, Juries, and Scientific Evidence, 16 J.L. & Pol’y 19 (2007)
- Frederick Schauer, Barbara A. Spellman, Is Expert Evidence Really Different?, 89 Notre Dame L. Rev. 1 (2013)
- James S. Fishkin, The Dialogue of Justice: Toward a Self-Reflective Society
Class 11— “The availability of punitive damages makes the results of a jury trial just too extreme and unpredictable.”
Criticism: Juries will decide the facts against the law because of perceived biases toward the parties. Juries will provide excess damage awards out of proportion to the actual damages as a result of emotion or bias. The risk of crippling damage awards discourages defendants from going to trial in bet-your-company litigation before an unknown, random selection of citizens.
Plan: We will try to answer: (1) are juries more likely than judges to award large damages? (2) what can we learn from mock trials and how to conduct them? (3) are shadow juries worth the additional expense? (4) how often are punitive damages really awarded? (5) to save the jury trial, should we forgo the possibility of punitive damages?
Possible Readings from:
- Stephen D. Susman, Using Mock Trials to Aid in Jury Selection, May 5, 2011
- Timothy D. Lytton, et al., Tort As A Litigation Lottery: A Misconceived Metaphor, 52 B.C. L. Rev. 267 (2011)
- Neil Vidmar, Mirya Holman, The Frequency, Predictability, and Proportionality of Jury Awards of Punitive Damages in State Courts in 2005: A New Audit, 43 Suffolk U. L. Rev. 855 (2010)
- David Schkade, Cass R. Sunstein, and Daniel Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L. Rev. 1139 (2000)
- Kaimipono David Wenger & David A. Hoffman, Nullificatory Juries, 2003 Wis. L. Rev. 1115 (2003)
- Lars Noah, Civil Jury Nullification, 86 Iowa L. Rev. 1601 (2001)
- Renée Lettow Lerner, The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial, 22 Wm. & Mary Bill Rts. J. 811 (2014)
Part V – The Jury as a Political Institution
Class 12— “The jury no longer has value as a political institution.”
Criticism: Defending the jury as a valuable political institution is overstated and ignores the negative costs to civil jury trials.
Plan: Before the class you will view the movie Twelve Angry Men. Argentina is using the 1957 Hollywood classic, “12 Angry Men,” to teach the public about how juries function, just days before the country’s largest province begins its first ever trial by jury. Some 2,000 copies of the film are being shown and distributed in small villages, towns, and universities throughout the province of Buenos Aires in a campaign launched by the government last summer to educate the population as well as convince skeptical lawyers and judges that juries can actually work. Our class will start with the question: does the film really confirm the virtues of trial by jury? Guests will include citizens who have recently served in civil juries in Manhattan. We will explore these questions: (1) does jury service lead to increased civic involvement? (2) should judges and attorneys be encouraged to interview jurors upon their release, either after the verdict or before? (3) should former jurors be encouraged to blog about their experience on the website WethePeopleWetheJury?
Possible Readings from:
- John Gastil, E. Pierre Deess, Philip J. Weiser, Cindy Simmons, The Jury and Democracy: How Jury Deliberation Promotes Civic Engagement and Political Participation
- Jason M. Solomon, The Political Puzzle of the Civil Jury, 61 Emory L.J. 1331 (2012)
- Valerie P. Hans, What’s It Worth? Jury Damage Awards As Community Judgments, 55 Wm. & Mary L. Rev. 935 (2014)
- Davis v. Husain, 106 A.3d 438 (N.J. 2014)
Class 13— “Jurors are disengaged in the jury system and there is no longer a central role for jurors in America.”
Criticism: Citizens, as voters and jurors, are failing to fulfil their civic roles because their roles are no longer as central as they once had been in earlier eras. Juror apathy does not matter much because juries do not matter much.
Plan: Observe actual jury deliberations from mock trials? Discuss the involvement of jurors. Do they all participate? Is there genuine discussion and persuasion going on? Discuss what can be done to increase public interest in and service on juries.
Possible Readings from:
- Ilya Somin, Jury Ignorance and Political Ignorance, 55 Wm. & Mary L. Rev. 1167 (2014)
- Andrew Guthrie Ferguson, The Jury As Constitutional Identity, 47 U.C. Davis L. Rev. 1105 (2014)
Class 14— “Do we keep the civil jury? Do we improve it? Why? How?”
Plan: The class, having reviewed each student’s written assignments, will critique and respond to them.
Readings from:
- The two original research pieces prepared by other students.