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American Bar Foundation An ABF Update Volume 18, Number 2, Spring 2007

Expanding Knowledge, Advancing Justice

HOW CIVIL JURIES REALLY DECIDE CASES

The Fellows of the American Bar Foundation Research Seminar

The ABF Fellows ResearchSeminar was held onFebruary 10, 2007 in

Miami. ABF Director Robert L.Nelson welcomed the attend-ees. He noted that the seminaris an annual event at the Mid-year Meeting of the ABA. It isan occasion to celebrate theresearch conducted at theAmerican Bar Foundation andto benefit from knowledgeablecommentary on the research bydistinguished members of thelegal profession. The seminarwas organized under the leader-ship of The Fellows ResearchAdvisory Committee chaired byThe Honorable Miriam Shear-ing, who is one of the commen-tators. Nelson informed theaudience that the discussionwould be led by ABF SeniorResearch Fellow Shari Dia-mond, who is one of thecountry’s leading jury research-ers. The panelists were mem-bers of an ABF advisory groupthat has been working withDiamond on her research.

we are here to talk about to-day—how juries actually delib-erate—is absolutely spellbind-ing.” She first introduced ShariDiamond. In addition to heraffiliation with the ABF as aSenior Research Fellow, Dia-mond is a professor of law andpsychology at NorthwesternUniversity School of Law. Priorto joining the law school, shepracticed at the law firm ofSidley Austin Brown & Wood.Professor Diamond is thepreeminent empirical re-searcher on the jury processand legal decision-making andhas published extensively inboth law reviews and behav-ioral science journals. Her workon juries has been cited by theUnited States Supreme Courtas well as by other federal andstate courts. She was a memberof the ABA’s American JuryProject and currently serves as amember of the Seventh CircuitAmerican Jury Project Commis-sion.

Nelson introduced TheHonorable Ellen Rosenblum

who is the current Chair of TheFellows of the American BarFoundation. Under her leader-ship the organization has“reached new levels of mem-bership and revenues, achievedgreater visibility, and enhancedthe quality of its program-ming,” he reported.

Judge Rosenblum indicatedthat it was a pleasure to be partof this seminar on jury delibera-tions because she was a trialjudge for 16 years in Portland,Oregon and now serves on theAppellate Court. “My true loveis the jury system, and the topic

Lessons from an Empirical Study of Actual Jury Deliberations

2 RESEARCHING LAW VOLUME 18 NUMBER 2 SPRING 2007

The jury is afavorite scapegoat,and you cannotopen a newspaperor readcommentarywithout runninginto criticisms of thejury

The Honorable MiriamShearing was then introducedby Judge Rosenblum, whoreported that Justice Shearing“has had a long and distin-guished career on the bench.”She began as Justice of thePeace in Las Vegas Township in1976, then became a judge inthe District Court Eighth Judi-cial Circuit. In 1992 JudgeShearing was elected to theNevada Supreme Court andbecame the Chief Justice in1997. Judge Shearing was thefirst woman in Nevada to holdall these judicial posts

a newspaper or read commen-tary without running intocriticisms of the jury.” Juries aresaid to be naive, easily manipu-lated, biased, and incompetentdecision-makers. Yet anotherimage of the jury finds it to be“a repository of folk wisdomand common sense.” Finally,Diamond noted, there is theportrait of the jury that comesclosest to her understandingbased on years of studying jurydecision-making—the jury asan active problem solver. Andthis is an important perspective“since we give juries some ofour most difficult problems tosolve and then ask them tocome to a decision.”

Diamond reported that herpresentation would focus on theArizona Jury Filming Project inwhich 50 actual civil jurydeliberations were videotaped.There were several sponsors ofthis complex undertaking butthe most prominent is theAmerican Bar Foundation.Funding was also provided bythe State Justice Institute andthe National Science Founda-

Judge Rosenblum noted thatpanelist Robert Grey, Jr. is theimmediate past president of theABA and was the initiator of theAmerican Jury Project, whichdrafted the new ABA Principlesfor Juries and Jury Trials. “He isthe quintessential example ofthe kind of ABA President thatwe hope for because his initia-tives outlast his time in office.”Mr. Grey was able to bringtogether not only entities withinthe American Bar Associationbut also outside organizationsthat have an interest in the jurysystem and in jury reform,Rosenblum pointed out. Mr.Grey is a partner in the Rich-mond office of Hunton &Williams, where his practicefocuses on administrativematters for state and federalgovernment agencies.

Patricia Refo, a partner atSnell & Wilmer in Phoenix, wasintroduced, followed by RobertJosephsberg, a partner atPodhurst Orseck in Miami, andMaurice Graham, a partner atGray, Ritter & Graham in St.Louis. Ms. Refo’s practiceconcentration is complexcommercial litigation. Since2000, Ms. Refo has served as amember of the Advisory Com-mittee on the Federal Rules ofEvidence of the United StatesJudicial Conference. She wasalso appointed by PresidentGrey as Chair of the ABAAmerican Jury Project and isthe past Chair of the ABASection of Litigation. Mr.Josephsberg is a commerciallitigator in Florida. Mr. Grahamconcentrates his practice incorporate litigation, medicalnegligence, and productsliability. He is past President ofthe Missouri Bar Association.

ABF Senior ResearchFellow Shari Seidman Dia-mond began her presentationby noting that it was a specialpleasure to address this audi-ence because as members ofThe Fellows of the ABF theyhave “directly or indirectlycontributed to making it pos-sible for this research to takeplace.” She pointed out thatthere are a series of often con-flicting images of the jury. Onone hand, it is viewed as acultural icon. In the 1830sFrench commentator Alexis deTocqueville said the jury wasone of the greatest institutionsin the American system. But atthe same time, Diamond ob-served, “the jury is a favoritescapegoat, and you cannot open

VOLUME 18 NUMBER 2 SPRING 2007 RESEARCHING LAW 3

tion. Northwestern Universitysupported a portion ofDiamond’s time that was de-voted to the project. Her col-laborators are Mary Rose,formerly an ABF ResearchFellow, Beth Murphy andAndrea Krebel of the ABF, and,in the early phases, Neil Vidmarwho is at Duke University.

The Arizona Jury Project wasinstigated because “the Arizonacourts are leaders in devisinginnovations in jury proce-dures,” Diamond reported. Inaddition to making changes, theArizona courts were interestedin knowing what effect theseinnovations would have on juryfunctioning. So the ArizonaSupreme Court allowed Dia-mond and her colleagues tovideotape the jury deliberationswith the understanding thatonly the researchers would haveaccess to the tapes. The jurorswere advised that the delibera-tions would be taped, and 95percent agreed to participate.Litigants and attorneys weresomewhat less willing to be-come involved but many didagree to cooperate. Cameraswere set up unobtrusively inthe upper corners of the delib-eration room, and microphonesrecorded the conversations. Thetrials were also videotaped intheir entirety, and post-trialquestionnaires were adminis-tered to all the participants—judges, attorneys, and jurors.

The cases in the study werevery similar to the overalldistribution of cases in PimaCounty in Tucson where thefilming took place. About halfinvolved motor vehicles, abouta third were general tort cases,and the remainder were medi-

cal malpractice and contractdisputes. The awards rangedfrom $1,000 to $2.8 million.

“Thirty years ago I thoughtjuries were an interestingphenomenon to study but I wasnot so sure that the jury was agreat institution,” Diamondobserved. She reported that shefelt like the scientist whothought the hummingbirdcould not fly because it shouldnot be able to fly. “But it turnsout that the hummingbird fliesvery well. And so, as it turnsout, the jury actually does quitea good job.” The intriguingquestion then is to try to under-stand how the jury accom-plishes this feat.

Challenges for Jurors:Comprehension and TrustWhen jurors enter the court-room, they encounter an unfa-miliar place, Diamond pointedout, “inhabited by professionalswith unfamiliar customs whospeak an unfamiliar language.”Moreover, these jurors will beasked to make an importantdecision. Yet the situationbecomes even more problem-

atic because attorneys andwitnesses will be trying topersuade jurors to see thingstheir way and “may intention-ally tell jurors things that arenot true.” Yet Diamond notedthat the videotapes indicate thatjurors are quite observant andaware of their role in anadversarial setting. For example,at several times during thedeliberations jurors commentedthat the judge appeared to besleeping during testimony.Diamond shared one juror’sresponse to that observation:

Juror #3: The reason they dothat is…that this is alltheater. They bring in theevidence and instead ofgiving us straight facts, theyare dramatizing it, so wepick up on certain pointsand remember certainthings. And that’s whatjudges are doing when theyclose their eyes. They areblocking all of the extrastuff out and just listening.

“This quote reveals the juror’sawareness that this is a perfor-mance, that there is manipula-tion going on, and that thejudge has got it as well,” Dia-mond reported.

The tapes also revealed thatthe jurors do not place theirtrust in everything a witnesssays, and so they pay attentionand take their cues from whatthey see in the courtroom. Thisbehavior is interesting becausethe deference of appellatecourts to trial courts is some-times questioned. But onereason for this deference maywell be the fact that the tran-script only contains the testi-mony and does not report onnonverbal activity, Diamond

Never let the jurorsthink you aretalking down tothem because theyare very sensitiveto that—and it islikely that if you do,you will beunderestimatingthem


While some critics ofthe jury claim thatjurors ignore experttestimony or blindlyaccept what they say,the jurors posedquestions to almosthalf of the experts

observed. For example, theplaintiff in one case claimedthat she might need to get up towalk around during the trial.The jurors obviously remem-bered this statement as thefollowing exchange shows:

#4: [s]he never got out ofthat chair the entire trial.

#1: You know something, Iwas moving more than shewas.

#4: And my butt hurt.

#1: She sat like a rock,didn’t she?

During deliberations manyjurors expressed the feeling thatthe opposing counsel werebeing condescending to them.As one juror stated: “I felt likethey were treating us like wewere imbeciles.” Another said:“It irritates me that they thinkwe, you know, aren’t listeningor something.” These exchangessend a clear message to attor-neys, Diamond pointed out.“Never let the jurors think youare talking down to thembecause they are very sensitiveto that—and it is likely that ifyou do, you will be underesti-mating them.” The jurors

constantly struggle with issuesof trust and competence, shenoted.

Juror Questions During TrialThe questions that jurors sub-mit during trial is another areain which competence plays akey role. In Arizona jurors areallowed to submit questions,and the cases studied in thefilming project reveal that theytake advantage of the opportu-nity. The jurors, in fact “areeager and comfortable with thenotion that they should bepermitted to ask questions,”Diamond reported. A total of829 questions asked by jurorswere analyzed, and the resultsare reported in an article thatwas just published in theVanderbilt Law Review. Thequestions focused on the con-troversies with which they hadto deal and the evidence theyhad to evaluate. The jurors hadmore questions for witnesseswith lengthier testimony andfor witnesses whom the judgerated as important. And whilesome critics of the jury claimthat jurors ignore expert testi-mony or blindly accept whatthey say, the jurors posedquestions to almost half of theexperts. “These are all mostlysubstantive questions about theexpert testimony to help thejurors try to understand it.”Further, most of the questionsaddressed relevant legal issues.

About a quarter of the ques-tions were aimed at clarifyingand filling in gaps, Diamondnoted. For example a psycholo-gist who testified was asked“what does the term ‘reasonablepsychological probability’mean?” A physician was asked:“what is a tear of the menis-cus?” In both of these cases

these terms were central piecesof the expert testimony, Dia-mond pointed out.

Nearly half the questionswere focused on cross-check-ing, that is, using a process ofcomparison to evaluate thecredibility of witnesses and theplausibility of accounts offeredduring trial. “This goes back tothe issue of ‘what do I trust,how can I figure out who’shelping me, who’s telling thetruth, how can I figure out howto understand the stories I’vebeen told,’” Diamond observed.The jurors were interested inmethods and tests as evidencedin this question: “Following theremodeling, were any testsdone to insure proper waterflow?” Other questions ad-dressed external standards. Onequestion, “Was there a mini-mum speed on the highway,”was an attempt to determine ifthe individual was driving tooslowly. Another question, “Didyour car have an airbag,” wasdirected at finding out whatspeed the cars were going when

Deliberations rarelybegan withoutdisagreement andambiguity, meaningthat the jurors havenot quite decidedexactly where theywant to be goingwith respect to theverdict

AMERICAN BARFOUNDATION

PRESIDENTDavid K. Y. Tang

DIRECTORRobert L. Nelson

RESEARCHING LAW:AN ABF UPDATE

Volume 18, Number 2,Spring 2007

EDITOR/WRITERAnne Tatalovich

PRODUCTIONClara N. Carson

ABF PHOTOGRAPHYRozanne Caldwell

© 2007 American Bar FoundationAll rights reserved.

Researching Law: An ABF Updateis published four times a year by theAmerican Bar Foundation,750 N. Lake Shore Drive,Chicago, Illinois 60611.


the crash occurred. An activatedairbag would have signaled ahigher-speed impact.

Assessing Balance in JuryDeliberationsThere is a common imageamong researchers who studyjuries based on post-trial inter-views with jurors or simulatedjuries and in the media thatjurors begin deliberations withstrong verdict preferences. Theytake an immediate vote whichshows what the majority pre-fers, and they then “browbeator otherwise persuade theminority to come around totheir verdict,” Diamond ob-served. But actual deliberationsare far more complicated, “atleast in the civil cases we stud-ied.” Deliberations rarely beganwithout disagreement andambiguity, “meaning that thejurors have not quite decidedexactly where they want to begoing with respect to the ver-dict.” Early calls for votes arecommon but the majority areunsuccessful. Moreover, votingoccurs on a variety of differenttopics, not just on liability anddamages. For example, the jurymay vote on whether they agreethat there was an actual vehicleon the road at the time of theaccident as the plaintiff hadclaimed.

The research team wasinterested in assessing howbalanced the deliberations were,Diamond noted. So everystatement that was pro-plaintiffor pro-defendant was coded.These statements include morethan just expressions aboutwhat the verdict should be butalso comments that either aplaintiff’s attorney or a defenseattorney would like to hear.Diamond provided two ex-

amples of pro-plaintiff state-ments:

• Case 1: I guess we can’t lose sightof the fact that this wouldn’t ofever happened if he [the defen-dant] hadn’t run the red light—He ran the red light and I’msorry you hit someone who hasso many problems, but youdid—next time be more careful…

• Case 2: So, if that’s how you arefor the rest of your life whatamount of money makes yourlife okay?

Two statements provideexamples of pro-defense lean-ings:

• Case 1: She [the plaintiff] wasn’twearing a seatbelt. She didn’tfollow the instructions that [thehospital] gave her. Because righthere it says, uh [he pagesthrough a document], oh, “assoon as possible make an ap-pointment to see Dr. X in twodays.”

• Case 2: (in response to length oftreatment) Which is outrageousas far as I’m concerned.

The valenced deliberationswere analyzed to determinehow one-sided the discussionswere. A minority of the state-ments jurors made during

deliberations were valanced,Diamond reported. “The restwere trying to fill in the facts,constructing the story, generallymore neutral or procedural andnot directly in favor of one sideor the other.” Among thevalanced statements, more werein favor of the defense than infavor of the plaintiff. “So thesejurors in Arizona, like jurorsacross the country, are not thepro-plaintiff jurors that we havebeen led to believe. For themost part, they are very criticalof the plaintiffs’ claims andscrutinize the plaintiff’s behav-ior quite closely,” Diamondrelated. Most juries showed a

One characteristicthat seems topredict who will beselected asforeperson is a jurorwho has beenperceived to takenotes during thetrial


mixture of valenced statements,that is, no fewer than 10 per-cent and no more than 90percent of the valenced state-ments favored one side. Theextreme juries, in which oneside was clearly favored, tendedto occur in cases in which thejudges agreed that the evidenceclearly pointed to the favoredparty.

The Foreperson in Action“The foreperson is perceived toplay an important role on thejury, but the jury is given littleguidance on how it shouldselect the presiding juror orhow that person should be-have,” Diamond reported. Butthere are definite patterns inforeperson selection. Males aremore than twice as likely to betapped, and those who have aprofessional/managerial back-ground are two and one-halftimes as likely to become thepresiding juror. “Jurors withboth these characteristics, thatis male professionals or manag-ers, are more than two times aslikely to become forepersons asjurors who lack one or both ofthese characteristics.” But thereare other factors that come intoplay. Nearly two-thirds of theforepersons are not professionalor managerial males. Onecharacteristic that seems topredict who will be selected asforeperson is a juror who hasbeen perceived to take notesduring the trial. Jurors have agood sense of who has beenpaying attention and also who iscongenial, Diamond pointedout. Another factor that predictsforeperson selection is whatDiamond and her colleaguescall “rule reminders.” So if the

jurors were permitted to discussthe case in the course of the trialbut then started to talk about itbefore everyone was in thedeliberation room, a juror whopointed out that they were notsupposed to do so until every-one was present—a rule re-minder—is more likely to bechosen as the presiding juror.

During deliberations fore-persons, as expected, talkedmore than other jurors; onaverage they talked twice asmuch as other jurors. “But theywere not, even in half the cases,the biggest talkers on the jury,”Diamond noted. In 29 of the 50cases another juror talked more.Forepersons were also active incalling for votes. They weremore likely than other jurors tocall for a vote, and their callswere more likely to successfullyproduce a completed vote

(defined as one in which at least6 of the 8 jurors voted).Forepersons were twice as likelyas the average juror to refer tothe jury instructions, threetimes as likely to read from theinstructions, and six times aslikely to post items on theboard.

To assess the influence thatforepersons have on the jury,the researchers coded each timea juror proposed either a liabil-ity verdict, a percentage ofliability if it was a comparativenegligence case or a dollaramount for the total award ifthey were talking about dam-ages. Two points were noted toderive measures of forepersoninfluence on the process andthe outcome: the first proposalthat was made on the issue andthe first outcome mention, thatis, what the jury actually endedup deciding. Forepersons weretwice as likely to give a firstproposal. But almost two-thirdsof the first mentions came fromnon-forepersons so the otherjurors were actively participat-ing as well, Diamond pointedout. The foreperson was oneand a half times as likely tomention first outcomes, mean-ing that 70 percent of the firstsuggested outcomes, whatactually ended up being thejury’s verdict, came from otherjurors.

In Arizona, if the verdict isnot unanimous, the only jurorswho sign the verdict are thosewho agree with the outcome. Inthe 50 cases, most of theforepersons (94%) as well asmost of the other jurors (92%)signed the verdict. But in thoseinstances where there was

The researchreveals thatforepersons areactive andinfluential, but theydo not control theprocess andproduce verdictsthat are out of linewith thepreferences ofother jurors


Jurors who claimedoccupationalexpertise weremuch less likely togive evidence infavor of only oneside

Permitting jurorquestions isimportant becausethey are notadversarialinquiries, for themost part, butattempts to try andunderstand whatoccurred

disagreement, the forepersonwas equally as likely to not signthe verdict as a non-foreperson.In post-deliberation question-naires the jurors were askedhow they would have decidedthe case if it had been solelytheir decision. Forepersons werejust slightly more likely (62percent) than other jurors (59percent) to agree with the jury’sverdict. The research reveals,Diamond noted, thatforepersons are active andinfluential, but they do notcontrol the process and produceverdicts that are out of line withthe preferences of other jurors.

Embedded ExpertsWith the elimination of occupa-tional exclusions, “‘experts’ existon the jury as well as in thewitness box,” Diamond pointedout. So nurses in medicalmalpractice cases, engineers inauto accident cases, and lawyersand legal secretaries can now befound on juries across thecountry. This expertise andknowledge can be a valuableresource for the jury system,Diamond suggested. “But thereis also the danger of a poten-tially uncontrolled influence inthe jury room, one who is not

qualified as an expert, is notcross-examined, and is notvisible to the judge or theattorneys.” Jurors are directedto decide what the facts arefrom the evidence presented incourt. But they are also told toconsider all the evidence in thelight of reason, common sense,and experience.

In the post-trial question-naires the jurors were asked ifthere was anything in theirbackgrounds that gave themparticular knowledge or exper-tise in serving as a juror in thecase, and 20 percent claimed‘particular knowledge’ orexpertise. Some claims, such as“I am a parent,” “ I am a driver,or “I go to the movies,” did notsuggest expertise that mightlead other jurors to defer, butothers were based on morespecialized experience. Thirteenpercent of the jurors identifiedsomething in their occupationsthat they thought was relevantto serving on the jury, andanother 10 percent had relevantoccupational backgrounds (e.g.,a nurse and an attorney) thatled the researchers to character-ize them as embedded experts.

The participation level ofthese embedded experts tendedto be higher than that of otherjurors. In addition, according toself-reports, the embeddedexperts also saw themselves asmore influential. But thesejurors were also unclear aboutwhat role their expertise shouldplay, Diamond reported. As onestated:

#7: …they said two thingsthat kind of confused me.They said we could bring

our experiences ... to bearand our judgment and theyalso said you can’t use anyevidence that wasn’t intro-duced.

Other jurors were less hesi-tant to draw attention to theirclaimed expertise:

First of all, I’ve been amechanic, raised in it mywhole life. I’ve also beenexposed to welding withmetals…he [the expert] saidthat was .1 in thickness …which is not very thick….My guess is it is probably 13gauge, which is pretty thinmetal. Now the metal usedfor the panel of the tailpipeis even thinner than that.Okay? Now, I don’t know ifyou noticed it, but whenyou’re are on the road, andyou see an auto accident,these little cars wadup…The engineers designthe cars to absorb as muchenergy as possible as op-posed to in the old fash-


ioned way…So I’m notimpressed by the tailpipebeing bent as much as it is. Imean, you know, you couldhave done that with a ten-speed bicycle.

Other instances of embeddedexperts offering their viewsincluded a physiologist whoconcluded, based on profes-sional expertise, that the posi-tion of the decedent’s bodycould not have caused death. Inanother case, an engineerexplained to fellow jurors howthe testimony of the opposingexperts assumes different

valenced statements that fo-cused most support (90 percentor more) on one of the partiesto the dispute. But the jurorswho claimed occupationalexpertise were much less likelyto give evidence in favor of onlyone side. “They seem to makean effort to spend some time onboth sides or—and I think thisis the more likely situation—they view the world in morecomplicated ways, most ofthem, and so they see argu-ments on both sides of thecase.”

Changing the Jury SystemBecause the jury is an activeproblem solver, there arechanges that could strengthenthe jury system, Diamondnoted. Permitting juror ques-tions is important because theyare not adversarial queries, forthe most part, but attempts totry and understand what oc-curred. “When the jurors in theLibby case asked Judith Millerwhether she usually keeps hernotes in a bag under her desk, itis likely that they were trying tofigure out her ordinary courseof events or whether she wastreating this encounter in adifferent way.” Under thecurrent system, “we do not do avery good job of communica-tion about the law with theresult that there are manyinstances when jurors do notunderstand its intricacies.”Providing jurors with note-books and tutorials would givethem more background fordealing with complicated cases.While some have suggestedproviding detailed roadmaps onhow to conduct deliberations,telling juries how to proceed ona step-by-step basis, Diamond

indicated that she was lessinterested in that approach.“What I have seen here is thatjurors do quite well in manag-ing their deliberations evenwhen their behavior is some-times messy and meandering.”The final lesson, Diamondobserved, is that the jury needsa good press agent “becausewhat we see in the news mediais a very biased picture of howjuries actually behave.”

Robert Grey noted that hefound the presentation reveal-ing because it provided impor-tant information about the“inner sanctum of one ofAmerica’s most guarded institu-tions.” He pointed out that hehas been given a lot of credit forinitiating the ABA’s AmericanJury Project. But it was not anoriginal idea, he indicated. Itwas the product of an excellentconference, “The VanishingTrial,” that was sponsored bythe ABA Section of Litigation,then chaired by Patricia Refo. “Iheard very passionate state-ments by judges and lawyersabout what we were losing interms of opportunities forlitigants to find ways to settletheir disputes through this veryingenious system we havedeveloped for jury trials.” AsShari Diamond indicated in her

In many cases, weblame jurors fornot understandingwhen we, thelawyers, areresponsible for thecommunicationproblem.

methods of producing the fire.

Embedded experts cancontribute very useful informa-tion, Diamond pointed out. Inone case none of the jurorssubmitted questions, which wassurprising since it was a com-plex financial proceeding. “Butit turned out that there was anaccountant on the jury, and theaccountant was very helpful inexplaining the expert testimonyto the other members of thejury.”

Diamond reiterated thatabout a third of the jurors made


presentation, the media por-trays jurors as not very knowl-edgeable and insinuates thatthey should not be trusted withcomplex matters. “But I triedcases for about 15 years, and Iwould trust a jury any day ofthe week in preference to anyother form of dispute resolu-tion.” Jurors try “as hard asanybody in our society to get itright, and they take it seriously.So I am a strong proponent ofthe jury system.”

The work that Shari Dia-mond has done provides im-portant insights, Grey sug-gested. The first is that jurorswant to be respected. Theywant to believe that the lawyersand judges who are entrustingthem to make a decision oncomplex and crucial mattersgive them credit for their abilityto understand what they arebeing told. “In many cases, weblame jurors for not under-standing when we, the lawyers,are responsible for the commu-nication problem.”

Shari Diamond’s work alsohighlights the cultural role thatthe jury plays in our society.Some 85 percent of the jurytrials in the world take place inthe United States. “We sum-mon five million people to serveeach year; a million of themserve on more than 80,000 jurytrials throughout the country.”The jury system is a primeexample of participatory gov-ernment, a cornerstone of ourdemocracy, and it is one of thefew places where we actuallyinfluence what happens in oursociety, Grey observed. Law-yers, judges, law professors, andresearchers need to take the

lead in insuring that the systemworks for those individuals weare asking to make very criticaldecisions. “This research indi-cates that we have the ability,the opportunity, and the re-sponsibility to try to make thesystem work better for jurors sothat they can provide justice tolitigants.”

Patricia Refo pointed outthat Shari Diamond’s empiricalwork is extremely important. “Ipersonally think that she is theleading researcher on theAmerican jury because she is

If you have not readShari’s articlesabout how realjuries work, then youare not doing whatyou should as a triallawyer to armyourself with thebest availableinformation aboutwhat it is that you doevery day

taking those of us who try casesto a place where we can quitsubstituting our anecdotalexperiences for empiricalresearch,” Refo suggested. “Ifyou haven’t read Shari’s articlesabout how real juries work,then you are not doing whatyou should as a trial lawyer toarm yourself with the bestavailable information aboutwhat it is that you do everyday.” Refo noted thatDiamond’s articles cover abroad range of topics. Animportant one is what jurors doabout questions in those juris-dictions where they are permit-ted to ask them. Do jurors, forexample, get stuck on a ques-tion when it goes unanswered?And the research indicates that,by and large, they do not.

Diamond’s research alsolooks at the impact of allowingjuries, especially in civil cases, tospeak about the evidence whenthey are all together in the juryroom, but before they arecharged and retire to deliberate,Refo pointed out. “Of all therecommendations we set forthin the ABA Principles for Juriesand Jury Trials, I daresay thatallowing jurors to hold discus-sions before deliberations wasprobably the most controversialone. I am mindful, since we arein Florida, that when the Floridacommittee was considering thisinnovation, it was rejected by arazor-thin majority of 44 to 1.So I understand that it is not allthat popular in Florida.” But ifyou read Shari’s articles, youwill understand what real juriesin Arizona actually do whenthey are permitted to talk aboutthe evidence, Refo noted. “Theydo not typically come to an


early conclusion, which is whateverybody fears they will do.”In fact, juries do what we allwould do if we were involved ina decision-making process inour ordinary lives that requiredus to include someone else,such as a spouse. “Imaginebuying a house–an importantdecision in your life–and thatyou and your spouse are operat-ing under a decision-makingmatrix that says you cannot talkabout anything until you haveseen every possible house, after

well for a couple hundred years,Refo observed, but we shouldcontinue to look at ways tomake it better, and to give toolsto people we have conscriptedinto government service thatwill enable them to make betterdecisions that improve thedelivery of justice. “A lot of theinnovations that Shari is study-ing do precisely that.”

Maurice Graham stated thathe knew he was preaching to achoir that all believed asstrongly as he does in theimportance of the jury system.“I think it is remarkable thatnone of us would single out anindividual juror and direct thatperson to decide an issue, butsomething magical happenswhen you put eight or twelvepeople together, and they do anoutstanding job.”

Graham indicated that one ofhis concerns as a trial lawyer isthe competing pressures thathave reduced the number ofcases that are tried. “Too oftenwe are told—either by somejudges and certainly by media-tors—that if the case is notresolved, short of a jury trial,then some parties are being

unreasonable and the systemhas failed.” But a jury trial iscertainly not a failure of thesystem, he asserted.

Graham noted that he is amember of the state committeefor the American College ofTrial Lawyers, and it has beenbecome increasingly difficult tofind young lawyers “working100 percent of their time in thelitigation field for their firmswho have tried many cases.” He

My concern is that amessage is beingsent which portraysa jury trial as afailure, when itcertainly is not, andI regret the reducedopportunities thatyoung lawyers haveto try cases

which you will be locked in aroom and somehow begin andend the conversation aboutwhich house you should pur-chase.” This is not the waypeople function, and Shari’sresearch actually speaks towhether or not the evils that weworry about will occur whenyou allow juror discussionsduring trials.

The jury system has worked

Instructions forjurors should betterexplain wordingthat sounds likeordinary languagebut has specialmeaning in thelegal system

pointed out that young lawyersdo not get the opportunity totry the types of cases that hewas able to try when he wasyounger, cases that involvedlimited money but whichallowed him to put witnesses onthe stand, cross-examine them,and do all the things that makeup a jury trial. “My concern isthat a message is being sentwhich portrays a jury trial as afailure, when it certainly is not,and I regret the reduced oppor-tunities that young lawyershave to try cases.”


A jury of six ortwelve strangerscan look beyond thetechnicalities andachieve justice

Justice Miriam Shearingobserved that she is also a fan ofthe jury trial. “In hundreds ofcases I have listened to the sameevidence the jurors have, and Irespect their decision. I almostalways agree with them, and inthose few instances in which Idid not agree, it was a very closecall.” One facet of Shari Dia-mond’s research that Shearingfound very compelling was thework on the unanimity require-ment in a jury trial. Diamondfound that when unanimity wasnot required, the dissentingjurors were marginalized. Therehas been a movement to elimi-nate the unanimity requirementin order to get more verdicts,and “I do not believe that it isan effective way to get verdicts.It is more important to have fullparticipation by all the jurors,”Shearing noted.

Shearing indicated thatproviding better instructions forthe jurors is a critical way toimprove the jury system. Theinstructions should be in plainlanguage. Also, many legalconcepts sound like ordinarylanguage, but are really terms ofart. It is also important that theinstructions give a clear expla-nation of any of these terms ofart. “I think improving juryinstructions so that they arerelevant to jurors should be amajor project.”

Allowing jurors to ask ques-

tions is also an important stepforward, Shearing pointed out.“I had a criminal trial a coupleweeks ago where questionswere asked, and I was veryimpressed at how helpful it wasfor the jurors.” Of courseanswering questions can help toclarify any misunderstandingregarding evidence that isrevealed by the questions. Also,even if a question is not directlyrelevant, a juror can be dis-tracted when there is a questionthe juror is pondering, andanswering the question canallow the juror to concentrateon the evidence being pre-sented.

Robert Josefsberg reportedthat he is not just a fan of jurytrials but a consumer. “I makemy living with jury trials, and Iam at a point in my careerwhere I live for jury trials,which I find invigorating andinspirational.” Jury trials are animportant element in oursociety, Josefsberg observed.Aside from the fact that it givesjurors an opportunity to partici-pate, juries can protect us fromthe law, just as law was initiatedto protect us from the king.There are many cases where thelandlord, the big corporation, orthe government has a good casetechnically, and a judge willfollow that technical law. “But ajury of six or twelve strangerscan look beyond the technicali-ties and achieve justice.”

Josefsberg noted that he haslectured in Europe and SouthAmerica about the benefits ofthe jury system, and when hesat down with judges, the mosteffective argument he madewas that “in jury trials, theynever shoot the judge after-wards. And the judges got thatone.” Communication is alsocritical when interacting withjurors, he pointed out. “Oneproblem is that some erudite,Ivy League-educated lawyerstalk down to so many jurors forso long a time that they just getclobbered in courtrooms.Lawyers have to learn to talklike people.” A former SurgeonGeneral, Everett Koop, insti-tuted a program at a medicalschool where he was associatedean that required second-yearmedical students to speak tograde school children once amonth about a medical phe-nomenon. The lesson here is “ifyou cannot explain a medical orlegal issue to a fourth, fifth, orsixth-grader, then you cannotcommunicate.” In the course ofrepresenting a corporation thatis technically right, there aretimes when he gets hurt byjuries, Josefsberg related. “Iaccept that and my client cantake it. Overall, I think the jurysystem is fantastic for ourcountry and the individualismit embraces, and I want you tokeep doing everything you canto preserve it.”

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