by: Dr. Ken Broda Bahm
In the recently concluded trial against former Illinois Governor Rod Blagojevich, the jurors came to refer to it as “The Bible,” based both on its power and on its frequently obscure meaning. In this case, the “it” being 105 pages of fairly complex instructions coming at the end of a thirty-nine day trial. The resulting fourteen days of deliberations were filled with heated arguments, and frequently unsatisfying attempts to understand exactly what the law was asking them to do. While some experienced trial lawyers cling to the belief that juries routinely disregard the instructions and substitute their own personal notions of fairness, the lesson of the Blagojevich trial, as well as our experience in a great many other trials, is that jurors will strive mightily to understand and apply the instructions – they just won’t necessarily have an easy time of it. Your role in trial is to help make it easier for them.
The fact that jurors will try to follow instructions is also backed up in research. For the last eight years, consultants have asked close to four thousand juror-eligible Americans the question, “When personal ethics and the law conflict with one another, which of the two do you think should be followed?” Aside from one possibly Enron-related bump in 2003, we have seen the trend move consistently in favor of the law over ethics, to the point that now nearly eight in ten will prioritize the law.
Our experience is that this preference for the law is all the more heightened in the solemn atmosphere of a courtroom. Today’s juries seem highly sensitized to the possibility that one side or the other is trying to get them to set aside the law in favor of a fuzzier ideal, like “fairness,” or “sympathy.” It is common in mock trial exercises to see one juror shooting down the such claims by saying something like, “yes, we all feel bad about this, but the law says that we can’t base our decision on sympathy.”
That desire, at least, to follow the law creates a need for jurors to understand and apply jury instructions. We know from a long tradition of research, that judges frequently fail at requiring comprehensibility and jurors frequently fail at comprehension. But that isn’t a reason to presume that jurors will simply set aside the law in favor of their common sense. The responsible among them (and there almost always seems to be at least one ‘responsible’ person in the group) will try to bring the jury back to the law. In that light, the responsibility of the litigator is to try by any means possible to make sure that law is communicated clearly. That means:
1. Propose clear instructions. Wherever you have flexibility, pick the instruction that not only favors your position, but also makes sense. If you have questions, have a non-lawyer you know read the instructions, and ask them what they think it means.
2. Pre-instruct if possible. There has always been something profoundly backwards in the tradition of presenting all the evidence first, and then to tell the jury what they should do with that evidence. If jurors have an understanding of what the law is asking them to do in the first place, then they know what to listen for, and are likely to have a much better understanding of opening statements and witness testimony.
3. Use the instructions in closing. If the judge allows, put them on the screen, highlight key language, blow up central passages, and read along with the jury. Explicitly let them know which instructions apply to which verdict form questions, because that s often obvious to the lawyers, but not as much for the jury.
4. Translate to common sense language. It is easy to forget that even a simple word like “negligence” isn’t a word that most Americans use every day. Without a reference point, even a concept like “ordinary care” might be mysterious. The more you can clarify — and admittedly, that often means ‘the more the judge allows you to clarify’ — the easier it will be for the jury to understand your argument. E.g., “In asking about ‘ordinary care,’ what the instruction is really asking you is ‘Was Bigco being careful enough to protect its customer…and was that customer being careful enough to protect himself?'” When it gets close to a concept the jury uses and applies every day, then it has a good chance of being a commandment that jurors will be able to follow.