Source of article The Advantage Blog - Tsongas Litigation Consulting.
In June, the National Judicial College published results to the question posed to retired trial judges, “About how often do you disagree with the jury’s verdict?” Results showed that 82% of the 446 judges who responded indicated they disagreed with the jury’s verdict less than 25% of the time.
At a recent CLE I attended hosted by the Young Lawyer Division of the King County Bar, I had the opportunity to ask retired King County Superior Court Judge Richard F. McDermott this question. His response? He said that in his 18 years as a judge, he disagreed with the jury only about 5% of the time, but when he disagreed, he really disagreed. He explained that these were typically criminal cases, in which he had been convinced the person standing trial was guilty of the charge (his example was of a child molestation case). He found it difficult to release a person who he believed committed a crime. However, he recognized that our system is setup to ensure a fair trial, and part of that process is that the prosecutor has the burden of proving the case beyond a reasonable doubt. If the jury did not find the prosecutor had met that heavy burden, he could accept the jury’s unwillingness to convict.
Our clients often discuss with us how often “the jury gets it right.” What they’re really asking is how often the jury gets it wrong. This is most often the center of discussion when the case facts are dense or when the type of litigation is complex. (It’s even more of a concern when both of these are true.) We help ensure our clients get a fair shake by focusing on a few key issues.
A well-crafted trial presentation helps the jury get it right by focusing on the key facts that are important in the case. We often rely on the mantra – if everything is important, nothing is important. If the other side is able to streamline their narrative and emphasize only their key points, while our side is down in the weeds trying to get every single piece of evidence in front of the jury, the jury can be easily persuaded to take a shortcut to a simple resolution. Laura Dominic thoughtfully explained why this is the case and what to do about it in a recent blog titled “Appealing to the Lazy Brain.” It is important to keep jurors’ cognitive load in mind when honing and focusing your narrative. Jurors can’t remember everything, but you can help them remember they key facts in your case.
Second, it is important to stop or at least slow the jury’s rush to judgement. There are always two sides to every story, and if the case is won before both sides have had a chance to tell their story, justice has not been done. In comments made in the National Judicial College results, one judge indicated they disagreed with the jury “more than half the time.” The reason? The article says of this respondent, “One said that an attorney can easily convince a jury to reach a wrong decision by playing on the jurors’ emotions or by focusing on certain details of a case that a judge wouldn’t consider important.” This should be highlighted in voir dire, opening statements, and closing arguments – sympathy cannot be part of a jury’s decision. Encourage the black and white thinkers in the group to keep the jury focused on the facts rather than emotion.
Although it may not come as much solace if the jury finds against your client, knowing that judge-jury agreement remains high assures us the justice system is functioning as intended. When bringing your case in front of a jury, help them make the right decision by staying close to your narrative and encouraging jurors to keep an open mind.