By Dr. Ken Broda Bahm: 

So the case is complex. Maybe it involves a tricky multi-stage legal question. Or maybe it requires understanding some arcane point on patents. Or perhaps it requires grappling with the workings of an unfamiliar technology. In these cases, is the jury up to the task? It can be tempting to feel like you would be better off with a judge or an arbitrator. After all, as another lawyer, that person is a member of your ‘tribe.’ Even if they aren’t any more trained in the specifics than a jury would be, they’ll at least have a better attention span, an analytical mind, and high intelligence, right? Not necessarily.

Reading a recent post in the PatentlyO blog, I came across a recent decision from Judge William Young of the US District Court in North Dakota, Eastern Division, looking at the question of whether a jury could adequately address the question of piercing the corporate veil. The written opinion in the case, Marchan v. John Miller Farms, Inc. (3:16-0-357-WGY D. N.D. Dec. 11, 2018), is pure fire. The judge writes, “It takes a special type of arrogance simply to conclude that American jurors cannot handle the veil-piercing issues presented here.” He goes on to argue more broadly for the continued relevance of the civil jury: “Quite simply, jurors are the life’s blood of our third branch of government. It is not too much to say that a courthouse without jurors is a building without purpose.” There is more, and Judge Young’s explanation is worth quoting at length. So in this post, I will do exactly that, and then share a few additional reminders on the ways that jurors ought to be trusted with complexity. 

Here is what Judge Young had to say, with citations omitted, in the opinion on whether jurors can be trusted with a complex question. 

The Opinion

Distrust is Grounded in Elitism

Referring to some recent scholarly opinions indicating that complexity is a judge’s province, not a jury’s: 

“It is appropriate to point out that most of these unsupported conclusions are nothing but elitism, pure and simple. They are an unabashed retreat from the magnificent vision of the Founders….” 

In response to the notion that jurors aren’t trained, he says…

“This is simply not true. I have been a trial judge for over forty years. In the fact-finding line, anything a judge can do, a jury can do better,” and he then referred to sociological evidence. 

Jurors Commonly Address Complex Questions

He shares some of his own experience:

“Four months ago, I watched a jury learn about the mechanics of 3-D printing and analyze a certain interface layer at the microscopic layer to determine obviousness and infringement. More recently, I watched a jury determine probable cause to remove an obstreperous passenger from a campus shuttle bus. I asked another jury this question: ‘Did the anticompetitive effect of [a] settlement [between two pharmaceutical companies outweigh any pro competitive justifications?’ Jurors have been deciding all these issues and many more complex.”

The Jury’s Role Is Vanishing Due to Neglect and Misperception

Judge Young notes that throughout American history, courtrooms have been a busy place, active with jury trials: “The most extensive and robust expression of direct democracy the world has ever seen.” 

Now, however, courthouses are more likely to be “a quiet government museum.” 

“Come in. Look around. It’s quiet. The real work goes on in judicial chambers, hidden from public view. You can hear your footsteps along the broad corridor past the vacant courtrooms. Go into a courtroom. There will be an American flag, limp upon its staff. Along one wall is the jury box. There decent, common-sense Americans with an overarching sense of duty have sat for years. Again and again, the courtroom has heard the clerk intone the familiar cry, ‘Ladies and gentlemen, please stand and harken to your verdict as the court records it.’ No more.”

“In this courtroom, the chairs in the jury box are empty, mute testimony to the consistent derision of self-interested corporations, shallow stereotyping by lawyers and scholars who do not know their way around a courtroom, and the virtual abandonment of the civil jury by those judicial officers most charged with keeping our jury system vital and flourishing.“

But it is Not Necessarily Too Late

On a more hopeful note, 

“Americans themselves may yet rescue their right to a jury. Workers at Uber, Lyft, Microsoft, Google, and Facebook have caused those corporations to abjure forced arbitration of claims of sexual harassment and assault. Large law firms are increasingly yielding to pressure to drop mandatory arbitration agreements for employment-related claims, such as those alleging sexual harassment and discrimination.” 

He ends the opinion, with a plaintive question and answer: 

“Do you care about any of this? You should. Your rights depend on it.” 

The Reminders

The point is not to be sanguine about complexity, or to simply trust the jury’s ability to deal with all manner of unfamiliarity and detail without special efforts from counsel. Rather, the point is that jurors can and do rise to the occasion when the presenting attorneys and witnesses are able to address complexity with skill and effectiveness. 

Empower Jurors to Take the Hard Way

Some jurors will take the easy way out rather than grappling with the full complexity at the heart of an issue. They’ll do so by adapting a simple heuristic (e.g., “I don’t trust corporations”) that frees them of the need to address the issue. But this preference for an easy way out certainly isn’t unique to jurors. After all, how often does the Supreme Court itself resolve an issue on a narrow basis instead of addressing the heart of the issue? But both judges and jurors will take the harder way as well, but they need to be encouraged to do so. The message to a jury needs to be that there’s nobility and purpose in avoiding the easy route, and really digging in to the details. Based on the “temporary identity” they adopt as they’re sworn in, jurors will often have a high motivation to not be easily swayed or manipulated, and to resist the knee-jerk reaction. That motivation can serve as a strong inducement to play close attention to the details. A jury also has a self-correcting strength in numbers: what one juror misses, another juror often gets, and explains to the group. 

Don’t Just ‘Present’ the Evidence, Teach It

It is not just a matter of revealing the evidence and letting it speak for itself. Instead, think of the best ways of teaching it. In simplifying, these are the three main tools. 

Steps

Anything difficult is going to be better understood when it is broken into pieces. That is because our brain adapts well when information is delivered in chunks rather than in a continuous flow. For example, if you need jurors to understand what a particular microchip does, it will help to break it down: Looking at this chip, it essentially cycles through seven steps…

Metaphors

People also learn through metaphors, and basically understand the new in terms of the known. That means it helps to find a metaphor that helps to relate the concept you’re teaching to something more familiar. And it doesn’t have to be an exact fit. Highly-analytical attorneys will often defeat their own simplicity by demanding that the metaphor be perfect, when all it needs to be is useful. In describing the microchip, for example, maybe discuss it as if it is human interaction. These chips work together like two people meeting: They recognize each other, then shake hands, then have a conversation, then say goodbye. 

Visuals

People also are more engaged and learn more effectively when they are addressed using pictures and not just words. Our own research has shown that even the same content in an opening statement will be more understandable and more memorable when it is presented visually. So for that microchip, don’t just show a diagram, instead think of creative ways to visualize the simple and functional map of how it works. 

And Note the Individual Differences

It should be noted that not every juror will rise to Judge Young’s ideal. Some will draw a blank when faced with complexity and others will actively avoid it, looking for an easy way out even with the best education. For example, we have researched the role of one psychological trait, referred to as “Need for Cognition,” in a civil trial context, and found that it often makes a difference. Those with a high NFC, or those who welcome and enjoy a cognitive challenge, will embrace complexity, and those who are low in that trait will avoid it. That dimension will often help you know who you are looking to avoid in jury selection. 

So the bottom line: If the case you’re bringing to a jury has complexity, your focus shouldn’t be just “Can they handle it?” but “How can I help them handle it?” And that’s true if you have a judge as well. 

Other Posts on Comprehension: 

• Brown Cows and Chocolate Milk: Account for Rational Ignorance
• Let the Jurors Take and Review Notes
• Make Concentration Contagious

Image credit: 123rf.com, used under license