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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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…