Commentary

We encourage judges, lawyers, jurors, and concerned citizens to submit articles for our consideration, either by clicking this link or by emailing research fellow Michael Shammas at michael.shammas@nyu.edu.

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April 2, 2020

What Online Jury Trials Could Look Like

By Richard Gabriel

“Federal and state courts in all 50 states have postponed jury trials and are struggling to try and maintain court functions and access to the justice system in light of the COVID-19 pandemic and public health concerns. As a result, there is a provision in Congress’ new $2 trillion proposed COVID-19 relief bill that allows for remote proceedings, such as video and teleconferencing in some court hearings….”

April 2, 2020

Seating a Civil Jury During a Pandemic

By the Honorable David Keenan, Judicial Advisor

“It’s early on a Monday morning. You lost an hour’s sleep yesterday because of Daylight Saving Time. Your city recently emerged from a record-breaking 30 days with rain in a single month and 80 straight cloudy days. The stock market is down 2,000 points. Oh, and you live in King County—ground zero in the U.S. for what will soon be declared a pandemic. But good news: You’ve been summoned for jury duty!

This was the situation confronting roughly 98 people who were civic-minded enough to report for jury duty at the King County Courthouse in Downtown Seattle the morning of March 9th, during one of the most challenging times in recent history. When people were being told not to gather in crowds and to engage in something called ‘social distancing,’ our prospective jurors dutifully appeared on the ground floor of the courthouse to potentially do just the opposite….”

April 1, 2020

Time Limits in Civil Jury Trials

By the Honorable Nathaniel Gorton, Judicial Advisor

“As a United States District Judge, I almost invariably impose time limitations on counsel in civil jury trials. I find that such limitations benefit not only the jurors who are, of course, required to be present, but also counsel and the parties to the litigation. That is because counsel nearly always over-estimate the amount of time needed to present an effective case and then, in an abundance of caution, tend to call more witnesses and examine them for longer than necessary or advisable. Time limitations force counsel to be more selective and have the added benefit of preserving their rapport with jurors who, not surprisingly, have limited attention spans and are not as enthralled with a particular party’s case as his/her own counsel….”

April 1, 2020

The Trial of Counting Trials

By Michael Shammas, Research Fellow

“‘It is clear that the number of jury trials declined in many, perhaps most, jurisdictions … over the last fifty years.’ [1] As Professor Marc Galanter writes, this decline reflects a long-term phenomenon with roots beginning in the early twentieth century.[2]

“I’ve previously brainstormed the causes of the decline in civil jury trials. I recently decided to see whether I could quantify this decline. Specifically, are some states exempt from the downward trend in civil jury trials? For reasons scholars like Professor Herbert M. Kritzer point out, I eventually found that—despite comprehensive federal data—accurately measuring the decline in civil jury trials by state is fraught, maybe impossible. This is due to differences in methodology by state, especially regarding fundamental questions like the proper definition of the word ‘trial….'”

March 4, 2020

Blinded Experts: A New Solution for Credibility in Litigation

By Professor Christopher T. Robertson, Academic Advisor

“Litigators know that expert testimony is essential to supporting almost any claim or defense, and the credibility of the expert can be the difference between a quick favorable settlement versus a drawn-out case that ends in an expensive loss.

“Unfortunately, even when an expert has impressive credentials, judges, juries, and opponents perceive that she is biased, since the lawyer hand-picked her and influenced her opinions. It is hard to get a fair evaluation of a case from such ‘hired guns,’ and harder still to persuade judges and jurors that they are credible….”

March 4, 2020

Some Tricks of the Trade from a Civil Trial Judge

By the Honorable Catherine Shaffer, Judicial Advisor

“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….”

March 4, 2020

Analysis: Do you get a jury trial in federal condemnation cases?

By Michael Elias Shammas, Research Fellow

“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.

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“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….”

February 24, 2020

What Jurors Say

By Michael Pressman & Michael Shammas, Research Fellows

“Over the course of the past months, the Civil Jury Project has provided recently discharged jurors across the country with a questionnaire about their experiences serving in trials.

“Jurors received the questionnaire in one of two ways: (1) Many judges agreed to distribute our questionnaire in person to jurors at the conclusion of their trials. These judges then sent the completed questionnaires to us. (2) We also have the questionnaire on one of our two websites, WeThePeopleWeTheJury.com. Many judges agreed to direct recently discharged jurors to the website, and the questionnaire also can be found by others carrying out simple internet searches. In sum, we have received over 800 questionnaire responses. These were filled out by jurors who served in cases all across the spectrum: state and federal, civil and criminal, short and long, straightforward and complex, and in cities and states all across the country….”

February 24, 2020

Second Thoughts About Hardship Excuses

By the Honorable Arthur E. Gamble, Judicial Advisor

“Civil justice requires jurors who are willing and able to render a fair verdict. Jurors must be able to sit for extended periods, to comprehend the evidence presented by the parties, and to follow the law per the judge’s instructions. In voir dire , lawyers seek impartial jurors who are able to serve in this critical function.

As judges, we often face citizens who are involuntarily responding to a summons to appear and who are unable to serve or are not particularly interested in serving. The unwillingness of potential jurors to serve may be particularly acute in long civil trials involving voluminous documents and video or audio depositions. The challenge is to select jurors who will find the trial an interesting and rewarding experience….”

February 20, 2020

Objection! Senators Are Not Jurors.

By Stephen Susman & Mark Drummond, Directors

“We wish to lodge an objection on behalf of all past, present and future jurors who are following the impeachment proceedings. Some Senators themselves, other members of Congress and the media keep referring to the Senators as ‘jurors.’ One aim of the Civil Jury Project is to honor those who serve as jurors in the courts throughout the land. To label the Senators ‘jurors’ is both inaccurate and damaging to our jury system. The differences between real jurors and the Senators are stark….”

February 19, 2020

High-Low Agreements: When Are They Enforceable? Do They Encourage Jury Trials?

By Michael Pressman, Research Fellow

“Included in the November 2019 issue of our newsletter was an article written by Judge Clare E. McWilliams, Illinois Circuit Judge, in which she discussed high-low agreements—agreements that specify minimum and maximum damages sums and thereby provide insurance to parties that proceed to trial. If the dollar sum of the verdict returned falls between the maximum and minimum sums agreed to, then the plaintiff receives the dollar sum of the jury verdict. If, however, the verdict is for a sum below the minimum (or a no-liability verdict), then the plaintiff receives the minimum that was agreed to, and if the verdict is for a sum that exceeds the maximum, then the plaintiff receives the maximum that was agreed to. In her article, Judge McWilliams presented the basics of how high-low agreements work, and she also discussed some of the issues that one should be mindful of in connection with their usage….”

February 12, 2020

Survey Results: Why Won’t Lawyers Get on the Fast Track?

Prof. Steven S. Gensler, Academic Advisor to the Civil Jury Project, and Hon. Timothy D. DeGiusti, Judicial Advisor to the Civil Jury Project

“In the June 2019 newsletter, Judge David Campbell (D. Ariz.) wrote about his experiment offering an expedited trial alternative in his civil cases. It generated little interest—even though he required the lawyers to develop alternative budgets to make the potential cost savings concrete—and he ended the experiment after four years.
“Judge Campbell’s experience is hardly unique. Expedited trial programs have been offered in at least five federal districts around the country,[1] and always with the same results. We spoke with judges from each of these districts, and each time heard the same story—the lawyers just were not opting in to these programs….”

February 11, 2020

Teach Law Outside of Law Schools

Michael Elias Shammas, Research Fellow

“What if I told you that the doctrine closest to the halls of power is largely unknown to the public? That the most pertinent social science subject — one that affects every single one of us every single day — is taught to only a select few? That would be absurd, right?

“Well, unfortunately this is no fiction. It is the state of legal knowledge in America, and it is profoundly troubling.

“After a year of study at Harvard Law School, the common sense notion that law is more than some abstract topic to be contemplated by stuffy academics has not yet left me. Even the most arcane cases reveal that law has real effects on real people. These effects can be good; they can also be bad. Law is the difference between marriage and divorce, riches and poverty, freedom and incarceration, and — in some cases — life and death. Like its source, politics, law affects us all, yet knowledge of very basic legal concepts is even lower than the average American’s already-pitiful knowledge of government….”

February 11, 2020

The Guyger Trial Demonstrates the Power of Juries. Here’s How We Can Make Them Even Stronger.

Anna C. Offitt, Academic Advisor

“At a time when revelations of race-based exclusion have threatened to undermine the legitimacy of the American jury system, Amber Guyger’s trial reminds us of the power and potential of this institution.

“The jury in Guyger’s prosecution reflected the diversity of the population of Dallas County, and it produced results: a murder conviction and a 10-year sentence for Guyger, a former Dallas police officer who shot dead her unarmed neighbor as he ate ice cream on his couch a year ago. She testified that she mistakenly entered his apartment and mistook him for a burglar….”

 

February 6, 2020

The Inability of Jurors to Self-Diagnose Bias

Christopher T. Robertson, David Yokum, & Matt Palmer

“Whether criminal or civil, litigants are guaranteed the right to an impartial jury. The voir dire process engages jurors in a colloquy to screen panels of potential jurors and remove unduly biased persons. When a juror indicates some feeling or opinion about the litigation, attorneys, facts, or law of the case, the standard practice is to ask the juror if they can set aside that feeling or opinion, and apply the law as instructed. In short, “can you be fair and impartial”? This is sometimes called “the magic question,” because when a juror reports that he or she can be fair and impartial, then it is highly unlikely that a litigant’s challenge for cause will be successful. We sought to explore whether this colloquy in fact provides useful information to the judge trying to impanel an impartial jury….”

February 6, 2020

Is Technology Changing Our Brains? Jurors Go Cold Turkey on Cell Phones

The Hon. Mark A. Drummond, Judicial Advisor for the Civil Jury Project

“The year was 2081, and everybody was finally equal. They weren’t only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211 th , 212 th , and 213 th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.”

And so begins Kurt Vonnegut’s short story, Harrison Bergeron . The story opens with George and Hazel (husband and wife) watching a ballet on television. However, the ballerinas wear weights (so they are not too graceful) and masks (so they are not too beautiful)….

February 6, 2020

The Top Five Things that Justice Stevens Said About Juries 

The Civil Jury Project (Staff)

“The New Jersey procedure challenged in this case is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.” Apprendi v. New Jersey, 530 U.S. 466, 497 (2000).

“We recognize . . . that in some cases jury factfinding may impair the most expedient and efficient sentencing of defendants. But the interest in fairness and reliability protected by the right to a jury trial—a common-law right that defendants enjoyed for centuries and that is now enshrined in the Sixth Amendment—has always outweighed the interest in concluding trials swiftly.” United States v. Booker, 543 U.S. 220, 244 (2005)….

February 6, 2020

Rethinking Evidence of Subsequent Remedial Measures

Prof. Bernard Chao, Academic Advisor to the Civil Jury Project

“Federal Rule of Evidence 407 and its many state counterparts prohibit plaintiffs from introducing evidence of subsequent remedial measures to show that the defendant is to blame. The rule is intended to prevent jurors from judging a defendant’s conduct using hindsight bias. Not surprisingly, plaintiff attorneys often try to take advantage of the rule’s numerous exceptions to introduce evidence of remedial measures for other purposes (e.g., to prove feasibility or to impeach a witness). Of course, their actual hope is that juries will use the evidence for the impermissible purpose — to show that the defendant’s original actions were wrong. My student, Kylie Santos, and I decided to test whether this assumption about jury decision-making was right. I presented a draft of our results to the NYU Civil Jury Academic Roundtable this past spring and share some of the highlights here….”

February 5, 2020

Where Have All the Jury Trials Gone, Revisited

Louis W. Voelker, Attorney

“Recently, Robert Dignam, a Lake County trial attorney and mediator, awakened me during his CLE presentation (just kidding, Bob!) by referencing my December 2015 article on the declining number of civil jury trials in Indiana. And so was born the idea to revisit those statistics and their implications. Let me first briefly recap the original article.

“Historically, the right to trial by jury of civil claims was sufficiently important to the Founders that it is ensconced in the Seventh Amendment to the United States Constitution. Likewise, the drafters of our state Constitution provided unequivocally in Article I, Section 20 of the Indiana Constitution: “In all civil cases, the right of trial by jury shall remain inviolate.” Although a large percentage of attorneys would likely cite the right to trial by jury as a critical element of the judicial systems of our state and our nation, the implementation of that right is beginning to appear more conceptual than tangible…”

February 4, 2020

Case Commentary: Arbitration Without Illusions 

Michael Elias Shammas, Research Fellow

“A recent decision from the District of Massachusetts (UBS Fin. Servs. Inc. v. Asociacion de Empleados del Estado Libre Asociado de Puerto Rico, 2019 WL 7000027 (D. Mass. Dec. 20, 2019)) included some interesting—and illuminating—language on arbitration.
“In a section titled ‘Arbitration Without Illusions’ (inspired by District of Maine Judge D. Brock Hornby’s essay, “Summary Judgment Without Illusions”) Judge William G. Young outlines several issues with arbitration….”

February 1, 2020

The Demise of the Civil Jury Trial: Part II

The Honorable Mark A. Drummond (Ret.)

“In our November newsletter I wrote about a medical malpractice case involving the death of a little boy. The jury returned a verdict of $10,000,000 in favor of the parents and his two siblings. The appellate majority of three, after ordering the parties to brief settlement negotiations and after “substantial collegial discussion,” decided to reduce the award to $3,000,000. The parents were also given the option of a new trial.

“One factor in the decline of jury trials may be judicial tinkering with hard fought jury verdicts….”

January 23, 2019

Are Circuit Courts Right to Deny Jurors the Ability to Set Punitive Damages? The Curious Case of Marla

Michael Elias Shammas, Research Fellow

“2019 was a strange year. One of its strangest cases was decided only a month ago.

“The case —which I will (for now) call Saccameno v. Ocwen —involves a dizzying nightmare of facts. The jury thought the ordeal merited $3,000,000 in punitive damages, but the 7th Circuit disagreed with both the jury and the district judge. In doing so, it lowered the award to produce a 1:1 ratio of punitive to compensatory damages—$582,000….”

February 26, 2018

Airing Out Jury Trials

Hon. J. Thomas Marten

“Jury trials, both civil and criminal, are seriously on the decline. Whether you consider this a positive or a negative development, it is a fact…..’”

February 1, 2018

To Tell the Truth: Voir Dire in the Age of Neuroscience

Jill Holmquist

“To tell the truth, the goal of voir dire examinations in jury selection has remained unchanged for centuries…..’”

February 1, 2018

The Long Shadow of the Civil Jury

Anna Offit

“In 2017, 0.65 percent of federal civil cases were tried before juries— down fifteen percent from the year before….’”

November 17, 2017

Some Additional Thoughts on Juror Discussions During Trial and Juror Questions

Hon. J. Thomas Marten

“Those lawyers who bring significant civil trial experience to the bench are frequently surprised by the difference in perspective the change in position makes…’”

November 15, 2017

Concurrent Expert Evidence in the United States- Is There a Role for Hot Tubbing?

Adam E. Butt

““Hot tubbing” is the colloquial name for a process of adducing and testing expert evidence which is more formally known as concurrent expert evidence…’”

November 14, 2017

Is There a Perception Problem with the American Jury System?

Kacy Miller

“If you search for “jury duty” on social media, you’re likely to find more than a few posts of people whining about it…’”

November 13, 2017

We Hold These Jury Decision-Making Truths to be Self-Evident

Charlotte A. Morris, M.A.

“The Civil Jury Project’s 2016 survey of more than 900 civil attorneys nationwide reveals that nearly one-third (30%) of those surveyed …’”

October 26, 2017

How Judges Can Further the Value of the Civil Jury Trial

Stephen D. Susman

“Six years ago, when I turned 70, I began thinking that I might end my career as a trial lawyer by teaching trial advocacy…’”

September 19, 2017

The Dematerialization of the Civil Jury Trial in American Jurisprudence

Honorable Bronwyn C. Miller and Honorable Meenu Sasser

“Trial by jury is a highly valued attribute of American government. It was regarded by the founders as ‘an essential bulwark of civil liberty.’”

August 25, 2017

Do Jurors Know About Damage Caps?

Deepa Devanathan

“Many states have instituted damage caps on non-economic damages in medical malpractice cases.  The practical effect of a…”

August 23, 2017

Understanding Bias:
Preserving Peremptory Challenges, Preventing their Discriminatory Use, and Providing Fairer and More Impartial Juries

Richard Gabriel

In 1936, Clarence Darrow wrote an article for Esquire magazine called “How to Pick a Jury,” containing sage advice on the art and skill…

August 21, 2017

Innovative Jury Trials 

Stephen Susman

The CJP was established at NYU School of Law in the fall of 2015 as the only academic center in the nation studying why jury trials are disappearing…

August 9, 2017

Empowering Jurors as Good Will Ambassadors 

United States District Judge Mark Bennett

Since my first day as a federal district judge twenty-three years ago, one of my most important goals in jury trials has been to empower jurors…

July 24, 2017

Jury Duty: A Founding Principle of American Democracy

 

United States District Judge Jack Zouhary

As federal judges, my colleagues and I are privileged to host naturalization ceremonies.  We are always encouraged to see the eagerness of civically educated,…

July 11, 2017

Jurors Play a Crucial Role in the Operation of Democracy in our Nation

United States District Judge Marvin E. Aspen, United States District Court

Although news media and commentators routinely scrutinize citizen alienation from our elected and appointed officers and representatives of the…

July 3, 2017

Federalized Tort Reform

Deepa Devanathan

While Former FBI Director James Comey testified in front of Congress about President Trump obstructing justice and while citizens protest TrumpCare (Trump’s new healthcare…

June 3, 2017

Saving Jury Trials

Stephen D. Susman

My project to save jury trials was born exactly 15 years ago, at a Saturday morning session of our 40th reunion with Prof. Akhil Amar talking about the Constitution…