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ADVANCED JURY RESEARCH
Jan Mills Spaeth, Ph.D. Rosalind R. Greene, J.D.
(520) 297-4131 (866) 505-4131 www.adjuryresearch.com | |
| Advanced Jury Research Newsletter |
Volume 3
March, 2009 |
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Greetings!
In this newsletter are tips for handling an angry, explosive witness, info on the trend of more reported racial bias by jurors, the effects of high unemployment on employment cases, and the 2010 "sunnier" economical forecast by the American Bar Association. We also have an update on the twitter and google problem in our courtrooms. Please see our update on published and upcoming articles as well.
We also want to you know that if your clients are experiencing economic hardships, but could really benefit from any assistance we can proivde, we would be glad to work with them on costs. We have been cutting our fees by up to 40% in some cases during this "crunch," and have been working out alternative billing arrangements as well. We're all in this together, and we will continue to provide top notch services to our clients at affordable rates!
Best Regards, Jan, Rosalind & AJR Staff |
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AJR Updates
If you would like copies of any of these articles, let us know!
**Our new article,"The Vanishing Jury Trial," will be published in the April issue of the Arizona Attorney. It features interviews with attorneys Robert Hirsh, Trisha Refo and Burr Udall.
** Our new article on "The Rambling Witness" will be published in Attorney At Law in their March issue.
**In February, our article titled "Are Tweeters or Googlers in Your Jury Box?" was published in Arizona Attorney. This included steps that judges are taking to deal with this increasingly problematic phenomena.
** Also in February, our article "Will Fact-Finders Believe Your Clients and Witnesses?" was published in Attorney at Law.
** Work is completed on the second set of DVDs for The American Bar Association. This 4 hour CLE on witness preparation includes the perspective of experienced, well-known trial consultants, and will be available through the ABA this spring. The first set of DVDs (available now) is for witnesses to watch before testifying at depositions or trials. Please see our website for more information.
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High Unemployment Affects Employment Cases
Trying employment cases during the highest unemployment numbers in decades poses challenges for lawyers on both sides of the case.
Based on a February 12th article by Sylvia Hseih (Dolan Media Newswires), across the country juries are trending toward higher economic damages, but requiring a higher threshold before awarding non-economic damages.
With joblessness so widespread and affecting so many people, plaintiffs must demonstrate something extraordinary in their story or evidence for a jury to find in their favor.
Because of this, plaintiff attorneys are focusing more on the defendant's bad acts than on the plaintiff's sad story. If employers have not followed their own policies, for example, jurors are still willing to hold them accountable. The focus on the defendant's wrongdoing, versus the plaintiff's situation, has resulted in more anger in jurors. This has resulted in higher verdicts when jurors do find liability.
Plaintiff attorneys are more selective in accepting cases. Part of this selection procedure is determing the defendants' solvency, since businesses are dropping like flies.
It can also be more difficult for plaintiff attorneys to establish a bad motive for defendants, especially in a large reduction in force due to financial hardship. If an employee is one of 50 to lose his job, it's hard to prove he was singled out.
Jury selection also takes on new considerations as a result of high unemployment. Jurors, overall, are less sympathetic to those who have lost their jobs than in the past. Their response is often "What's new?". Also, for those plaintiffs who still have a job, but are suing because of lack of promotion or other reasons, jurors are less empathetic, reasoning that the plaintiff is lucky to still be getting a paycheck!
In jury selection, ask jurors if they have seen the recent movie "Up in the Air". If so, did they like George Clooney's character, who played an executive laying off workers across the country? if they thought he treated the workers reasonably, they are likely good defense jurors. If they thought he was a hired gun who destroyed people's lives and dignity, they are probably good plaintiff jurors!
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Tweet & Google Update
The February 2010 issue of Arizona Attorney featured our article, Are Tweeters or Googlers in Your Jury Box? www.myazbar.org/AZAttorney/.
This issue continues to be a hot topic, and we will keep you abreast of developments. Most of the tweeting and googling in the courtroom wreaks havoc!
One of the most recent illustrations occurred in mid February in the Michigan murder trial of Tammy Jefferson. She was accused of allowing her severely disabled adult daughter to die of neglect. During a break in deliberations, a juror conducted internet research to learn that if convicted, she faced a mandatory life sentence. The juror told fellow jurors that he conducted research on the topic, but did not reveal his findings.
The judge replaced that juror with an alternate. The jury reached a guilty verdict. Ironically, the prosecution argued that the neglect was primarily due to Ms. Jefferson's internet obsession!
Some pretty severe remedial measures are being explored to combat this problem. A judge in Wisconsin decided to take matters into his own hands by asking permission to befriend the jurors on Facebook and asked them to disclose any blogs to which they post so that he could monitor their activity throughout the trial.
Other courts have considered electronically sequestering the jury by taking away their electronic devises during the trial. Still, the most widely discussed solution is to improve the use of judicial admonition.
The U.S. Judicial Conference recently sent federal district judges suggested jury instructions on "The Use of Electronic Technology to Conduct Research on or Communicate about a Case." www.uscourts.gov. It is similar to the Ninth Circuit's Criminal 1.9 Conduct of the Jury and Civil 1.12 Conduct of the Jury admonitions, but adds even more specificity to prohibited communications such as Blackberries, iPhones, Twitter, Facebook, My Space, and YouTube, among others.
None of these admonitions, however, explain the rationale behind the prohibitions like we noted in the proposed Arizona Preliminary Criminal 13. For information on the progression in other states, see Eric Robinson's blog, Juror Use of Social Media: A State-by-State Guide, available at:
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The Angry Witness
Question: How do you prep an angry, explosive witness?
Angry witnesses can be very difficult to prepare for testifying at hearings, depositions, or trials because they want to project their frustration, not listen to suggestions. Here are some tips for dealing with them.
First, it is critical to find out why the witness is angry. Does he feel unjustly accused? Does she feel this case is a waste of time? Is lack of money causing stress? Are family members creating problems? Is a job or career being threatened? The trigger behind anger is usually a concern with a loss of some sort, and it is essential to identify what this loss might be. It it money, reputation, career, health, or family?
Second, let the witness express the anger, at least to a point (no throwing allowed!) Once the witness has vented, and is certain that you understand his vexation, that witness is likely to calm down (exhaust himself!) and let you have your turn to speak. Trying to immediately interrupt or stop a witness who is expressing anger will just increase the frustration. Even if the witness appears to level off when interrupted, the anger is often internalized, resulting in passive-aggressiveness and underlying resistance.
It may also be helpful to have the witness write out his or her feelings andd sources of anger, partly for catharthisism and partly for your knowledge.
Let the witness know that the best way to gain control of a diffcult situation is to first get control of his emotions. Ask the witness to breathe deeply, and to think of a happier moment in the past. Suggest that the witness think of the good things in his life at that point. Get his mind off the case temporarily so his blood pressure can return to normal!
Then ask the witness to focus on what he or she wants for an outcome. Point the witness in a positive, purposeful direction. Let the witness feel some semblence of control by sharing case options with him or her, and getting feedback. Plan strategy. Find out what the witness knows. Once emmersed in a task, emotions often become secondary.
Ask the witness how she wants the jury or fact finder to view her. What impression does she want to make? Prefessional? Helpful? Believable? Does anger fit in with this image? If she realizes it does not, she is more motivated to work with you on presenting differently.
Lastly, remind the witness that when testifying, the jury or fact finder is his audience, not the opposing attorney. Imagine answering questions as if the questioner was a 65 year old lady, small with white hair, who is sincerely interested in his answers to the questions. Changing the percieved "audience" often mellows an angry response! |
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ABA Predicting A
Sunnier 2010 Economy!
After a year of unpresidented cost- cutting in the aftermath of the global economic crisis, annual revenue reports for 2009 being released this month suggest a sunnier forecast for 2010, according to the ABA's Business of Law (posted February 24th).
The ABA's Law Pracice Management reported that a "confidence index" developed by Citi Private Bank Law Watch showed that managing partners haven't felt this confident since 2007.
Most managing partners believe that the worst of the recession is behind them, and there is more optimism about the financial conditions at their law firms, largely due to a surge in anticipated demand.
Roughly 64% of the managers seruveyed expected the demand for legal services to grow in the next 12 months. Litigation did begin picking up this past quarter, which could mean an end to associate layoffs, according to the reports.
Although an increased demand in legal service is anticipated, alternative billing arrangements with clients is still expected in many instances.
Clients are also wanting more for their money than in the past, and are expecting more responsiveness from law firms now.
The sunnier outlook predicted for 2010 is certainly good news for all of us, and any signs of this are truly welcomed!
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Given that most people fear being labeled as a racist, it is surprising tht claims of racism are rising among jurors!
A February 23rd article reports that according to judges and lawyers gathered to celebrate Los Angeles County Judge Terry Hatter at Loyola Law School the prior week, more and more prospective jurors are branding themselves a racist to avoid serving on panels ("Self-Identified Racists and the Los Angeles County Courts," by Sara Libby, ILL Communication).
According to Judge John Meigs, he is not by nature a mean person, but hes is now often forced into getting aggressive with jurors who will say anything to get off jury duty, even alleging racist beliefs.
It is no coincidence that these racial biases correlate with a tough economy. It is likely that jurors are willing to give outlandish excuses rather than admit that money is a problem.
Even so, hardship claims have skyrocketed as well.
The article goes on to comment that states like California should move toward implementing features from Arizona's jury system, which pays jurors well on long trials if they an substantiate a loss of income.
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You Have Retained Your Experts.
Have You Retained Your Trial Consultants?
Jan & Roz
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P.O. Box 91410, Tucson, AZ 85752-1410 (520)297-4131 (886)505-4131
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