Tag Archives: Juror

What Jurors Bring Into The Deliberation Room

jury_room_525-300x204On Wednesday, a 12-member New York jury returned a verdict against Michael Steinberg, a senior portfolio manager with hedge fund SAC Capital Advisors LP, finding him guilty of trading using inside information that allegedly passed through four people before it reached him. An article in today’s Wall Street Journal about the deliberations of the jury forewoman, Demethress Gordon, provides a glimpse into how jurors bring their own experiences to the deliberation process, sometimes filling gaps left open by the trial attorneys.

Ms. Gordon entered the deliberations convinced Steinberg was innocent. The evidence against Steinberg included tips passed to him from his subordinate, an SAC analyst named Jon Horvath, about Dell and Nvidia. Steinberg allegedly placed trades within minutes after receiving the information from Horvath, who was a cooperating witness in the government’s prosecution. Ms. Gordon was initially not convinced by the evidence that Steinberg knew the tips were the fruits of confidential, “inside” information. She rationalized, as the story points out, “he [Steinberg] was the boss and relied on his staff to supply him with information they knew to be proper.”

Following the first day of deliberations, however, Ms. Gordon attended a screenwriting class “that happened to focus on the subtext of characters’ actions.” This made her receptive to an analogy offered, during the second day of deliberations, by another juror “who told her to imagine walking through the door. ‘He told me to go through the door,’ she said. ‘I understood what he meant, without him having to say, ‘Walk to the door. Turn the knob. Step through it.'” It “suddenly clicked. People can understand more than they are told . . . Mr. Steinberg must have known the information he received was based on nonpublic information . . . even if it wasn’t explicitly made clear.” After Ms. Gordon changed her mind and explained her reasoning to the sole remaining hold-out, who agreed, the jury returned a unanimous guilty verdict.

This perfectly illustrates how jurors will sometimes draw from their own outside experiences or intuitions to fill a problematic chasm in the elements of a case (or a defense). While I don’t know more about the evidence either side presented, this suggests to me (1) that the prosecutor did not have or put forth sufficient evidence that Steinberg would have understood, explicitly or implicitly, that the analyst’s tip was inside information (though it is telling that 10 of 12 jurors were apparently ready to convict at the end of the first day of deliberations), and/or (2) Steinberg’s defense attorney did not sufficiently anticipate and exploit this gap in the evidence. Either way, it’s interesting to be a fly on the wall.


One Way To Object Without Garnering Juror Resentment

yhuOne of our most important jobs during trial is to object, when necessary, to prevent the improper admission of evidence. But doing this job, even properly, is not without its risks. Chief among these is the risk of alienating jurors or garnering resentment because it is obvious–assuming the objection is sustained–that you have succeeded in hiding some quantum of information from the jury. After all, they’ll wonder, if your client’s case is so obviously a winner–as you said in your opening statement–why this need to hide facts from us?

As always, the wise Professor McElhaney has something to offer on this topic. In his Trial Notebook (3rd. Ed.), he suggests we learn and practice how to make objections understandable to the jury. He even suggests they can be made appealing. He writes:

“It is true that objections are supposed to be made to the bench, not to the jury or opposing counsel. In fact, addressing either your adversary or the jury is an invitation for a reprimand from the judge. On the other hand, there is no rule against making objections so that the jurors understand the basis for your objection and perhaps even sympathize with your position, rather than concluding you are pulling some lawyer’s trick to keep them from hearing the whole truth.

Essentially the idea is to state a legally sufficient objection–one that is specific and accurate–which a layman can understand and appreciate, and do it in five to ten seconds. For example, ‘Objection, leading,’ may win a ‘sustained’ from the judge, but will not really help the jury understand what you have done. ‘Objection, Your Honor, leading. Counsel is putting words in his witness’s mouth,’ lets the jury see that your adversary has been doing the testifying.

The time limitation is very important, since if you take too long, you are inviting attack for making a speech. With some work, even the most difficult concepts can be understandably compressed in a short time. Instead of saying, ‘Objection, hearsay,’ you might say, ‘Objection, Your Honor, the jury can’t tell whether some casual bystander this witness overheard was telling the truth. This is hearsay.'” (p.327)

McElhaney goes on to point out that, while it may seem like fine trial lawyers who make well-phrased objections do so extemporaneously, the truth is that such language is generally developed and practiced in advance.


Temper That Temper During Cross-Examination

DSCN2840-220x165“We got a kinder, gentler,
Machine gun hand” – Neil Young

There is the temptation, it’s almost primal, to be derisive, if not outright mean, when cross-examining a witness who has lied in the past or is lying on the stand. Even if it’s only theatrical, to provide an example to the jury how they should regard the witness with suspicion or contempt, it seems almost natural to treat her with disgust.

But it’s important to bear in mind that, even if the substance of the cross-examination establishes the witness is a liar or unsavory individual, the jury might not reward an examining lawyer–or his client–if he crosses the line. The real challenge, however, comes when litigating a case on the road, in a venue whose culture draws “the line” of civility differently than an attorney’s home court. I’m thinking here about an experience my colleague had some years back when he (a Los Angeles lawyer) tried a civil case in Hawaii.

I’ve visited Hawaii a few times, but never had an opportunity to conduct business of any kind beyond securing a reservation for dinner or a scuba dive. Frankly, I’ve never given a thought about how Hawaiian citizens would receive a cross-examination of a witness differently than someone from Los Angeles. But it turns out that they don’t cotton well to a lawyer who takes a harsh tone to a witness during examination. This became clear to my colleague (this is hearsay, of course, I wasn’t there) after he cross-examined an important witness using a less-than-gentle tone. Apparently it was clear to everyone in the courtroom that the jurors did not react well as the witness was being subjected to a tone of questioning we Californians might consider perfectly appropriate.

That night, in preparation for the following day of testimony, it was decided that our local counsel, a native Hawaiian, would handle the cross-examination of the next adverse witness. I am told the contrast between the his tone during cross-examination, gentle, less confrontational, like “a knife cutting through heated butter,” and my colleague’s examination the previous day, was palpable. Let me make clear that my colleague’s cross was not over the top at all,† just consistent with how we would take such a witness here in Los Angeles. The difference was simply that the Hawaiian jurors do not appreciate the kind of confrontational tone we might employ when addressing a witness in cross-examination.

This highlights a concern we should always have when litigating, or even transacting any king of business, in a venue that is culturally different from our own. When faced with a trial in a culturally unfamiliar venue, I would always recommend involving local counsel, if only to advise about these kinds of cultural differences.

†In fact, it was not a “temper” or anger issue, at all. The title of this post is probably an unfair misnomer.


Are “Millennial Jurors” to Be Feared or Celebrated

A great post on Associate’s Mind, entitled “Millennial Jurors: Entertain Us,” discusses the challenges facing trial lawyers trying to communicate with Gen-Y jurors.  In addition to prognostications about how these young adults can’t sit still and pay attention for the hours needed to take in information during a jury trial (how will they check their smartphones?!?), the post (which itself references an article in the Texas Bar Journal) notes how information needs to be presented to Millennial jurors in shorter visual “bites,” as opposed to purely verbal, format.  Better make sure it’s not boring, either.

Undoubtedly a cottage industry will sprout from within the ranks of  jury consultants and trial support firms of “Millennial specialists” who claim to know the secret to engaging Gen-Y jurors.  But I don’t think the shorter attention span, and increased need for engaging visual, as well as verbal, content is really that new or a bad thing at all.  I’ve written elsewhere how trials are too long and taxing on jurors’ minds and attention spans.  Anyone trying cases in the past 25 or 30 years knows that a purely verbal presentation–without visual aids (even rudimentary visual aids) is risky, even if the subject matter is pretty sexy.

I think that, while the (alleged) changes in attention span, and increased appetite for visual stipulation seen in Gen-Y (and presumably later) generations might be lamented by parents, educators, psychologists, novelists (and other print media writers) and others, it should not necessarily be lamented by those in the business of trying cases.  Rather, like any development, it should be prepared for and embraced.  It is true that evidence will need to be presented differently if it’s going to get through to Millennial jurors, and this will require some reflection and research.  (Perhaps more in-depth research than was undertaken in developing the Texas Bar Journal article, which was simply a survey of law school students.)  And, probably, some trial and error.   

Turning the coin over, though, there will surely be evidence that only the younger generations will “get,” at least at first.  For example, while it’s commonplace now for defense lawyers to scour the internet for impeachment evidence, there are older jurors who don’t surf the internet and don’t understand “The Facebook,” Twitter or LinkedIn.  Cases involving new media, reality television and certain progressive technologies might be completely foreign to more senior jurors but completely familiar to members of Gen-Y.  (OK, I’m a little biased because I practice in Los Angeles, where every case will someday be “pre-tried” on TMZ).  In short, there should be a place at the table for every kind of juror.  The challenge to the trial lawyer is to engage, as best as possible, with jurors of every generation, not just the over-30 demographic.

We’ve got to raise our game, or get out of the way.


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