The vanishing jury trial is perhaps one of the most important issues facing the civil justice system today.  Civil trials have declined in federal courts from 12% in 1984 to less than 1% in 2010.  Statistics from state courts, though more difficult to obtain, generally show the same trends.  The issue has been widely studied, and while the fact of the vanishing trial is clear, the reasons for the decline are less obvious.  Several theories have been advanced, ranging from a dramatic rise in case filings and underfunded court systems to the ever increasing cost of litigation and the success of alternative dispute resolution.  

Technology has created a new avenue for identifying potential juror misconduct.  I read a recent article about a juror who commented on Facebook that it was going to be fun to tell the defendant he was guilty.  The problem was that the evidence had not concluded.  She updated her Facebook status with the comment during a break in the trial.  Whether you are a criminal or civil trial lawyer you know a juror is supposed to wait until they have heard all the evidence before making up their mind.  However, all trial lawyers have heard the jury consultants say that as a practical matter most jurors make up their minds by the end of the opening statement.
 
In the case of this juror, the update was found by a member of the defense lawyer's staff who was reviewing juror Facebook pages when he ran across the update.  When the judge in the case was advised of the update, the judge replaced the Facebooking juror with one of the alternates on the case.
 
Now, was it really misconduct for the juror to post her feelings on Facebook?  Under current standards there is no question that it was.  However, are we putting form over substance?  If most jurors make up their minds by the close of evidence where was the harm?  Was it making up her mind too soon or in telling folks that she had made her decision?  Given what the juror posted, was it a reflection of how the entire jury panel felt and should the defendant not have gotten a mistrial?
 
As a practical matter, you can bet my staff will be reviewing juror Facebook pages during my future trials.

I recently read an article that discussed a growing trend in jury trials:  allowing jurors to ask questions of witnesses.  The article indicates that allowing jurors to ask questions of witnesses while on the stand is a favored trend because it helps jurors feel more like they are a part of the process and likely reduces deliberation time because jurors spend less time in deliberations speculating about unanswered questions.

The article set out a simple process.  Once counsel concludes their examination, the jury is asked by the judge if they have any questions.  Any questions are written down by the jurors and passed to the Court Deputy who hands them to the Judge.  The Judge determines if it is a question that at least on its face appears proper.  The Judge then asks Counsel if they have any objection.  If there is no objection the question is asked.  If there is an objection the Court rules the objection and makes the call whether to ask the question.

Well as fate would have it, I lived the experience of allowing jurors to ask questions in a recent wrongful death trial.  The process followed was very similar to that outlined in the article with the exception the Court at times tried to clarify the question and did allow follow up by Counsel. 

During four days of evidence, there were about a dozen questions. Only two were rejected by the Court as improper.  In the case of an improper question the Court simply did not ask the question without any explanation as to why the question was not asked.  There were no questions asked that were objected to by one side but not the other.

The overall experience was positive especially since the jury returned a defense verdict, but I have to say I am not sure any time was saved during deliberations since it still took the jury six hours to return their verdict.  In sitting and listening to the Court ask the questions posed by the jury it dawned on me how much the Court could, by how it asks the question, rephrases the question or by asking its own follow up question, influence a jury.

For future reference if you are comfortable with your judge I see no reason to oppose allowing the jury to ask questions of witnesses especially since it will likely happen anyway.  I would however, make sure  the process of how the questions will be asked is clear including if there is to be any clarification that Counsel have input in the clarification of the question and that any follow up questions come only from counsel.  The only other suggestion I might offer is that the jury be advised, when they are instructed they can ask questions, that if a question they pose is not asked it is because under the rules of evidence the question cannot be answered or some other general reason why the question was not asked.

If anyone would like to share their experience with jury questions please do, I would like to know how others feel about this apparent growing trend in jury trials.

The judicial system will be busy creating new law concerning the phenomenon of jurors texting, tweeting and googling while serving on the jury.  Creating new jury instructions is the easy part.  Enforcing such instructions and deciding what to do when a juror does not follow them or what to do with a trial that is tainted because of the same, is the real daunting task.  One thing is clear, courts across the country are moving towards banning all electronic communications from the jury.
 
For example, in late January this year, the Judicial Conference released to the federal judiciary a model jury instruction which has been coined the “Twitter instruction” that states:
 
“You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn and YouTube.”
 
There are no nationwide jury instructions for state courts.  Each state adopts its own set of jury instructions.
 
On September 1, 2009, the Michigan Supreme Court imposed a new rule that will require all judges to instruct jurors that use of any handheld device such as iPhones or Blackberrys while in the jury box or during deliberations is impermissible.  As follows, when such devices are banned, communications such as tweets on Twitter, Google searches, Facebooking and text messages by jurors during trial will come to a halt for Michigan jurors and those jurors in jurisdictions with similar instructions. 
 
Michigan’s new rule arrives in the wake of an influx of recent cases in which jurors have blogged, posted Tweets, sent text messages or updated their Facebook during trials, resulting in the dismissal of jurors, mistrials and angry judges.  These results will keep the courts busy creating law for years to come. Specifically, when these mishaps occur should a mistrial be granted?  Should the offending juror be excluded?  To date, courts have really gone either way with these issues.
 
For example, in March 2009, during a Florida drug trial it was discovered that nine jurors were ignoring the judge’s instructions and conducting Google research on the defendant, checking legal terms and uncovering evidence that was excluded at trial.  The result, the judge declared a mistrial.  Further, in Florida, a Miami-Dade Court Judge declared a mistrial in May 2009 in a civil fraud case after a company executive witness texted his superior on the stand during a side bar conference.  
 
In contrast, in Pennsylvania, a mistrial was not declared although called for, when a juror was discovered tweeting and publishing trial updates on Facebook in the prosecution of a former Pennsylvania state senator convicted of graft.  In Arkansas, a judge in April 2009 ruled that there was no mistrial when a juror’s Twitter posting stated, “just gave away TWELVE MILLION DOLLARS of somebody else’s money.”  The judge upheld the $12.6 million dollar verdict finding that the tweets were not improper although done in poor taste. 
 
Jurors are supposed to deliberate cases based on evidence presented at trial in the courtroom and not based on independent research via the web.  Those rules are clear.  However, how far can a juror go and what standard will the courts use to determine when a juror has gone so far as to taint the whole process.  This has yet to be developed into a consistent body of law and this new area of law is ripe for development.

I’m posting something a little different today. The material on this blog is normally related to legal or DRI matters, but its Friday and everyone needs a break. The following is one person’s recount of her day serving as a juror in a municipal traffic court. Its funny but it also provides us some (valuable?) insight into jury deliberations.

I hope everyone enjoys this as much as I did.

(By the way, I received written permission to post this.)

"Dear Citizens,

I wish I were a good writer because I’d really like to convey what an incredibly, unbelievably asinine day I had today as a juror for the municipal court of [City, State]. So please bear with me in my ramblings and read on if you dare.

“Call time” was 7:30 a.m. with no instructions on where to park. I parked in a nearby un-labeled lot and hoped I wouldn’t get towed. As luck would have it, I actually picked the right lot. My luck would soon run out. More...

Jury instructions are one of the most important, yet most overlooked, parts of a trial. Consider how jury instructions are presented for a moment. The only impartial participant in the trial process, the person sitting up on a pedestal above everyone else in the courtroom, cloaked in a robe, will read the instructions to the jury and tell them how to decide your client’s fate. Merely considering how jury instructions are delivered illustrates their importance. Slaving away over a perfect legally correct set of instructions could all be for naught if the jury cannot understand the instructions they are given.

I. A Background Look at Comprehension of Jury Instructions

There is no shortage of social science research on jury behavior. Numerous studies have demonstrated how juries deliberate, how jurors think and the extent to which they understand jury instructions. For years, research has suggested that jurors do not understand the instructions given to them at the conclusion of a trial. See Nancy Marder, Bringing Jury Instructions into the Twenty-First Century, 81 Notre Dame L. Rev. 449, 454 (2006); Bethany K. Dumas, Jury Trials: Lay Jurors, Pattern Instructions, and Comprehension Issues, 67 Tenn. L. Rev. 701 (2000); Ronald W. Eades, The Problem of Jury Instructions in Civil Cases, 27 Cumb. L. Rev. 1017 (1996-97); Geoffrey P. Kramer & Dorean M. Koenig, Do Jurors Understand Criminal Jury Instructions? Analyzing the Results of the Michigan Juror Comprehension Project, 23 U. Mich. J.L. Reform 401, 432 (1990). Evidence suggesting that juries do not understand jury instructions comes from several sources, including jury questions posed to the court during deliberation, case law from states that allow testimony concerning juror deliberations and case law from states that allow testimony about conversations between jurors during deliberations. See Dumas, supra. Researchers believe this lack of understanding can be attributed to several problems including use of legalese, ambiguous language and awkward grammatical construction, just to name a few. See Marder, supra citing Robert F. Forston, Sense and Non-Sense: Jury Trial Communications, 1975 BYU L. Rev. 601, 617 (stating that jury studies have generally found that “legalese” hinders jurors’ efforts to understand instructions); Bernard S. Meyer & Maurice Rosenberg, Questions Juries Ask: Untapped Springs of Insight, 55 Judicature 105, 106-07 (1971) (examining questions submitted by juries and noting that they often arise from unfamiliar or abstract words) and Robert P. Charrow & Veda R. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions, 79 Colum. L. Rev. 1306, 1328 (1979) (finding that jury instructions are not well understood and that “specific linguistic constructions may be at the root of at least some of the comprehension problems”).

Consider the following excerpt from a Massachusetts Institute of Technology-educated Ph. D., Arnold King, who served as a juror in a criminal case in March of 2006:

Although I thought I had understood the judge’s instructions as he was reading them, he offered to provide us with a written copy, and when we were given one copy there was sentiment that all of us should obtain copies, so that was done. We began our deliberations by going over the instructions, but any hopes that they would provide definitive guidance were unfounded.
…
In my view, the instructions…were almost impossible to sort out. I could imagine a lot of jurors simply giving up on interpreting the law and instead making a judgment based entirely on ‘gut feel.’ That is, rather than making a logical determination, a juror might say, “I feel like it was murder” or “I feel like it wasn’t murder.” In our case, I think we tried very hard to understand and follow the law. But we also honored our gut feelings, and I believe it was right to do so.

Arnold King, Law and Order, TCS Daily, Apr. 14, 2006, http://www.tcsdaily.com/article.aspx?id=041406C.

The problem of jury comprehension (or lack thereof) is not always recognized by lawyers or courts. In January of 2000, the Supreme Court of the United States decided the case of Weeks v. Angelone, 528 U.S. 225, 120 S. Ct. 727 (2000). The case dealt with the issue of whether a trial judge in a death penalty case was obliged to clear up jury confusion over a sentencing instruction. The majority opinion authored by the late Chief Justice Rehnquist stated that it can be presumed that jurors understand instructions given to them. Yet, this presumption seems to fly in the face of social science research by psychologists, sociologists and linguists. Apparently, under the Weeks decision, it is adequate for a trial judge to answer a jury’s question about the meaning of an instruction by simply re-reading the language of the original instruction. With this bleak prognosis on comprehension of jury instructions, what is a lawyer to do?

II. Sources of Instructions

There are many sources of jury instructions. Most states have published pattern jury instructions. Local pattern instructions are a great place to start, and some states even require that pattern instructions be used. State Supreme Court websites sometimes post form instructions as well. Perhaps the best resource is the work of your colleagues. They may have instructions previously given by the judge in your case or from another local judge. Previously given instructions can certainly be helpful in tailoring the instructions you want the judge in your case to give.

Sometimes there is no template instruction available for an issue. In these circumstances, there are two other places you can look for guidance in drafting an instruction: case law and statutes. Be sure that if you are modeling your instruction after case law that you are modeling the instruction based on the holding in the case, not dicta. If you are basing an instruction on a statute, it is tempting to simply quote the statute verbatim. Be forewarned, however, that this can lead to a very lengthy and confusing instruction. The material that follows will offer suggestions to solve this dilemma. Other sources for jury instructions include Lexis-Nexis, Westlaw and other legal research sites on the internet. Pattern jury instructions are merely diamonds in the rough. Following a few simple tips and tricks will help polish them up and turn them into clear and easy to understand instructions that will truly assist the trier of fact.

III. Considerations in Drafting User-Friendly Instructions

All good instructions are accurate, but not all accurate instructions are good. It goes without saying that it is important for the jury instructions you submit to the court to be accurate statements of law. Your instructions should always provide proper citation to authority so that the court and opposing counsel can verify your statements of law. Courts will refuse to give instructions which misstate the law. In addition, courts refuse to give instructions that are immaterial, improper under the facts of the case, erroneous, incomplete, repetitive, misleading, confusing, argumentative, conflict with other instructions or mischaracterize evidence. But the question remains: How do you go from accurate statements of law to an instruction a jury can understand? The answer is easier than you may think – simply write your jury instructions in plain English.

Research suggests that translating jury instructions into plain English improves jury comprehension. Perhaps not surprisingly, in many cases when instructions were re-written in plain English, juries also had less difficulty understanding them. See Marder, supra and Dumas, supra. Some studies say that comprehension can improve from fifty to sixty-five percent, all the way up to eighty percent once re-written. See Raymond Ward, Clear, Effective Jury Instructions, For the Defense, July 2004 citing Joseph Kimble, How to Mangle Court Rules and Jury Instructions, 8 Scribes J. Legal Writing 39 (2001-02). Other studies have concluded that comprehension of instructions increased as a function of exposure to instructions, and one study concluded that jurors who were given copies of the written instructions actually understood them better. See Marder, supra. But see, Heuer & Penrod, Instructing Jurors: A Field Experiment with Written and Preliminary Instructions, 13 Law & Human Behav. 409 (1989).

Saying that instructions should be written in plain English is easy enough, but actually doing it can be much more difficult. The evening news and hometown newspapers have mastered the concept. The same public who watches TV and reads the newspaper also serves on juries. Consider the following plain English tips for making your next set of jury instructions easier to understand.

A. The Art of Plain English Jury Instructions

The very first step after identifying the applicable pattern instructions applicable to your case should be to re-write them into plain English (unless you are in a state that requires pattern instructions to be used – and there are some that do). Some pattern instructions may be used without much modification, for example, instructions on credibility of witnesses. Other instructions may require significant modification before they are understandable. Read and consider each pattern instruction carefully and see how each can be modified to reflect a plain English statement.

Make your instructions conversational. Once you have written them, read them out loud. This is how a jury will hear them. If you feel as though you are droning on and on, with no end in sight, that is likely the way the jurors will feel as well. Also, in some jurisdictions, instructions are only read aloud and are not provided to the jurors on paper.

Convey one idea, topic or legal issue per instruction and avoid compound sentences. This breaks the law into bite-sized pieces for your jury, making concepts easier to understand and apply. Avoid double negatives. No one wants to not have a jury understand the law. See how confusing it can be? Similarly, write in the affirmative, not the negative. For example, “Plaintiff must prove negligence to recover,” rather than “If Plaintiff does not prove negligence, she cannot recover.”

There is no room in plain English for legalese or legal jargon, so avoid it at all available opportunities. Jurors do not understand most of it anyway and, as can be seen from the Weeks case, judges do not have to explain it to the jury. Additionally, you may not want the judge to explain it. Where use of a legal term cannot be avoided, define it within the instruction. Do not place a definition on a separate page forcing jurors to turn pages back and forth. Clearly defining legal terms when they are used will cut down on confusion in the deliberation room and keep the focus on your case – rather than how a particular legal term may have been used on an episode of NBC’s Law & Order.

Strive to always use active rather than passive voice in your instructions. For example, “Plaintiff has the burden of proof” rather than “the burden of proof is on the Plaintiff.” Using active voice will keep your sentences clearer and will keep them from becoming unnecessarily wordy and confusing.

Nothing will confuse a juror more quickly than instructions that refer to “Plaintiff’ and “Defendant.” Tailor your instructions to your case and use party names. In law school, most people learn that using “Plaintiff” rather than “Mr. Jones” is more persuasive because it depersonalizes him. Using these impersonal terms can quickly confuse a jury leaving them struggling to figure out which party is which. Do the work for them and eliminate the doubt. You certainly do not want the jury to find for the plaintiff thinking that the plaintiff is your client. To illustrate, consider Ian Frazier’s illustrative example with the infamous Wile E. Coyote and Acme Company in a products liability suit filed by Mr. Coyote against Acme for its allegedly defective rocket sled. See Ward, supra. The product liability law in such a case will likely refer to the manufacturer, the product and the Plaintiff. When it is time to put the law into a jury instruction, substitute Acme for the manufacturer, the rocket sled for the product, and Mr. Coyote for the plaintiff: “To prevail against Acme, Mr. Coyote must prove that the rocket sled was defective.”

Finally, put all of your instructions in a logical order and limit them to a reasonable number. Background and general instructions should come first including instructions on burden of proof, evidentiary standards, experts and credibility of witnesses. Once the jury has background instructions, move into the substantive law of your case and the elements for the causes of action. The next step is to provide instructions on any applicable defenses the defendant(s) may have and then instructions on damages. Conclude by incorporating a few instructions regarding deliberations so that all jurors understand how the deliberation process works.

B. Comparing Instructions: The Good, the Bad and the Ugly

By way of example, consider the following product liability jury instructions re-written in plain English. You may even find that the law becomes clearer to you after reading these.

Legal Version: Causation – Strict Products Liability If you decide that the product was defective or unreasonably dangerous, you must consider whether the product caused or enhanced Plaintiff’s injuries. To meet this burden, Plaintiff must only show that the greater likelihood or probability that the harm complained of was due to the defective nature of the product. Conduct of the Defendant is irrelevant to this inquiry. The only focus is on the product itself. The product must be a legal cause of Plaintiff’s injury. If the harm would have occurred anyway, then the Defendant is not liable. It does not matter whether other concurrent causes contributed to Plaintiff’s injuries, so long as you find the product contributed to the harmful result in a material or important way. That this contribution was not slight, insignificant or tangential to causing the harm.

Plain English Version:
If you find the lawnmower was defective, you must decide whether it caused or worsened Mr. A’s injuries. Mr. A must prove that it is more likely than not that the defective nature of the lawnmower, and not something else, caused his injuries. If you find that Mr. A would have been injured even if the lawnmower was not defective, ABC Manufacturing, Inc. is not responsible for Mr. A’s injuries.

Legal Version: Duty as to Product Design A manufacturer of a product has a duty to use ordinary care in the design of the product so that it will be reasonably safe for the use for which it is intended or which can reasonably be anticipated. In exercising this duty, ordinary care must be exercised by the manufacturer to design the product in such a way that the product is reasonably safe for the ordinary consumer who possesses knowledge common to the community as to the product’s characteristics. Failure to fulfill this duty constitutes negligence. You may consider evidence of an alternative design in your determination of this issue, but it is not required to prove a design defect. Likewise, the fact that a hazard is open and obvious or has been warned against are also factors to be considered in analyzing whether a product is defective or dangerous. If a product was at the time of manufacture in compliance with legislative regulatory standards or administrative regulatory safety standards relating to design or performance, the product is not defective by reason of design or performance, unless the plaintiff proves that a reasonably prudent manufacturer, could and would have taken additional precautions to design the product so as to be reasonably safe for the ordinary consumer who possesses knowledge common to the community as to the product’s characteristics.

Plain English Version:
ABC Manufacturing must use ordinary care in designing its products so people who are using its products in the manner intended will not get hurt. You may consider warnings on the product or hazards that are obvious in determining if ABC Manufacturing took proper care in designing the highchair in this case. If you find that the highchair met industry standards, it is not defective unless Mrs. B proves a reasonable manufacturer could have and would have taken additional precautions.

Legal Version: Causation
As to the requirement that Plaintiff’s injury be caused by a Defendant’s conduct, I do not mean that the law recognizes only one cause of any injury, consisting of only one factor or thing, or the conduct of only one person. On the contrary, many factors or things may operate at the same time, either independently or together, to cause injury or damage. You should resolve this question by deciding whether Plaintiff would probably not have suffered the claimed injuries in the absence of a Defendant’s conduct. If Plaintiff probably would have suffered those injuries regardless of what Defendant did, then you must conclude that the injuries were not caused by the Defendant. If, on the other hand, Plaintiff probably would not have suffered the claimed injuries in the absence of a Defendant’s conduct, then you must conclude that Defendant’s conduct did play a part in Plaintiff’s injury.

Plain English Version:
More than one thing can cause an injury. You must decide whether Mr. C would still have been hurt regardless of ABC Manufacturing, Inc.’s conduct. If you find that Mr. C would have been hurt anyway, ABC Manufacturing, Inc. did not cause Mr. C’s injury and cannot be held responsible. On the other hand, if you find that Mr. C would not have been hurt but for ABC’s conduct, then you should find in favor of Mr. C.

IV. Getting the Most Out of Your Instructions Throughout Your Case

One final thought: Jury instructions are usually one of the very last tasks to be completed before a case goes to trial. Writing your jury instructions early, however, can be beneficial. Written early, as discovery and depositions are just beginning, jury instructions can serve as your road map to guide you through your case (just as they will later guide the jury). You can use them to tailor discovery requests to the plaintiff or co-defendants, thus making sure you have gotten discovery on all relevant claims and defenses. You can use them as an outline for depositions to be taken in the case. You can even test comprehensibility of statements of law during the depositions of your lay witnesses. You can also use the instructions when drafting your client’s dispositive motion. The bulk of the law you will rely upon will already be laid out in your instructions and you can simply include this law in your motion and then apply your facts. A complete set of jury instructions, with your facts as an overlay, can also assist in developing a trial theme. Finally, if you have your instructions mostly complete before your trial begins, you can use excerpts from your instructions during voir dire to help empanel your jury. Start introducing your potential jurors to the law you are going to be asking them to apply as early as possible. Doing so can only help with comprehensibility in the end.

Laurie K. Miller is Of Counsel with Ellis & Winters, LLP in Raleigh, North Carolina. Her primary practice areas include products liability, drug and medical device litigation, medical professional liability, and commercial litigation. Ms. Miller has devoted a substantial portion of her practice to mass litigation, multi-district litigation and class actions. She is currently serving as the Second Vice-Chair of the Young Lawyers Committee.

Recently, the DRI Jury Service Task Force published its paper (which can be downloaded on the DRI website) in which the Task Force analyzed strategies for promoting jury participation in the civil justice system. The Task Force uncovered some startling statistics. In some jurisdictions 50% of the people summoned failed to appear and in others the undeliverable rate for jury summonses to minorities was 40%.

While it was enlightening to learn of the many organizations that have studied and researched jury issues, these organizations do not relieve us of our responsibility to promote jury service. A well funtioning jury system preserves public confidence and presents a viable alternative to binding arbitration, which has fallen into disfavor with our clients.

It is up to us, as DRI members, to participate work with our SLDOs and state and local advocacy groups to educate and communicate the value of jury service and to allay our clients misconceptions about the fairness and effectiveness of the jury system. As trial lawyers, we have the duty to act to promote and preserve the jury system.

Are juries MORE or LESS conservative in tough economictimes? In trying three products cases to verdict in 2008, my experience is thatjurors don't get too excited about an "iffy" liability case in tougheconomic times. They are more worried about their jobs and mortgages. But I cansee it cutting both ways. Incessant news reports of bailout packages worth"billions of dollars" might desensitize them into forgetting the valueof a dollar. I'd be interested in trial counsel's thoughts and experiences.