By Dr. Ken Broda Bahm:
We’ve all heard the standard language in drug commercials: After a string of increasingly dire warnings about risks and side effects (a list that seems to nearly always end in “death”), a cheery voice will urge you to, “Ask your doctor if this drug is right for you!” While the parallel isn’t perfect, I was recently asked by some clients whether a jury would be right for them, or whether they might instead prefer a judge. So in this case, as their (non-medical) doctor, my advice is that it depends.
The choice of a fact-finder, when that choice is yours, can be a judgement call that depends on reasoning your way through a few factors. In thinking about “what juries are like,” I think there is sometimes a tendency by those in the legal field to implicitly treat them as some kind of “other,” and to play up the limitations and exaggerate the risk of arbitrary results. For me, thinking about the merit of a choice for or against a jury is a matter of soberly considering the practicalities and likelihoods, while also resisting stereotypes. The bottom line is that jurors are people, much like all the other people that you know and react to regularly. But that doesn’t mean they are always right for your case. In this post, I will share five questions you should ask in approaching the question, “Is a jury right for my case?”
How Complex Is Your Case?
In an age of expanded and long-term discovery, cases can get pretty complex. The common wisdom is that if your case is not the kind of case that could be effectively understood through one-time exposure to a 45-minute summary, then you might benefit from a decision from a judge who is able to not only apply their legally-trained and analytic mind to the task, but is also able to build up their comprehension over time by reviewing motions and ultimately controlling the trial. As I have written before, juries can handle complexity, probably more than we give them credit for. But when the case is highly in the weeds, when it depends on a legal understanding, or when it rests on a specialization that can only be effectively learned over time, a judge may be better.
How Emotional Is Your Case?
Seeing a case through an emotional lens is a human trait, not necessarily a jury’s trait. On the one hand, a jury, less steeped in the evidence-oriented and analytic traditions of the law, might find themselves more swayed by the emotional content of a case. But on the other hand, as a sample of the general public, the jury might be more exposed to the anti-lawsuit narratives of out-of-control jackpot justice, and could be more resistant to giving in to a sympathy-driven response. Ultimately, it depends on the specifics of your case story and your venue. When your case is driven by a need for a particular emotion, then it may be worthwhile to consider whether a jury is more or less likely to give you that.
How Polarizing Is Your Case?
You might have a case where the reaction of the majority would be relatively predictable, but with the possibility that someone at the extreme end might have a unique reaction. For example, there could be a bad fact in a case, and most would be able to cognitively process your response, but some may not be able to get past it. The risk of this kind of “outlier reaction” might cause some lawyers to want to avoid juries. There is one important consideration that cuts the other way: Within a jury, your outlier will probably be in the minority, and there is a good chance that their perspective will be outvoted or watered down. With a judge or an arbitrator, on the other hand, your outlier may well be your only decision-maker. Sometimes, the moderating effect of a larger group’s deliberation is what you want.
How Experience-Driven Is Your Case?
How common will it be for fact-finders to have direct experience with the issues in your case? If the case involves an automobile collision, you can expect nearly all of your jurors to be drivers. If the case centers on employment, you can expect nearly all of your jurors to have experience with several jobs. Fact-finders will most likely know, consciously at least, that they are supposed to set aside that specific experience. That action of bracketing out past knowledge, however, might be easier for a legally-trained and analytic judge, than it will be for jurors. So it makes sense to consider how experience will play out, to predict what “expertise” jurors are likely to bring to a case, and decide whether that is more likely to help you or hurt you.
How Much Does Your Case Appeal to Something Other Than Law?
A final consideration is a little touchy, and comes down to this question: Ideally, would you want the individuals hearing your case to neutrally apply the law to the facts and go with the most evident decision, or would you look for them to be motivated by something about the story and focus a little bit beyond the facts and the law? In other words, would you want a jury prone to at least a bit of nullification? It isn’t unthinkable at all. Reptile plaintiffs, for example, want a jury to be moved, not just by the plaintiff’s circumstance, but by the idea of community safety. A defendant might want their decision-makers to consider contributory negligence, even when that concept isn’t in the instructions or on the verdict form. The more you are looking for a reaction to the whole narrative, and not just the narrow facts and law, the more you may want a jury over a judge.
Naturally, these considerations have to be applied, and every case is different. Just as with the drug companies’ warnings, it is an individual analysis. To make your own decision on whether a jury is right or not, you will need to consider your pros and cons, get advice, and ideally do some pretrial research (like a focus group or mock trial) on your own case and venue.
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Other Posts on Jury Characteristics:
- Understand Jurors’ Process on Pain and Suffering
- Expect Your Jury to Grow
- See It Through the Jury’s Eyes: A Trial Consultant Does Jury Duty