What We Still Don’t Understand About Lawyers, And Other Leaders, On Juries

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Last year I was a little flippant when I wrote about Robert Martin, the New Jersey lawyer, law professor, and state legislator who made the mistake of admitting, in an article about his jury service, that his opinions “swayed other jurors and were extremely influential in the final outcome.”

“Well of course they did,” I said, and tried to explain that any juror with relevant expertise is an important resource for other jurors, and that any jury containing a lawyer/juror/legislator/professor is thus essentially a jury of one.

“A terrible practice”

You’d think I’d be more respectful now that the intermediate New Jersey appellate court has reversed the verdict, in large part because of Martin’s influence. But if anything, I’m feeling grumpier than ever. Commenters are holding up the decision as evidence that there’s something wrong with the jury system. Jonathan Turley says the story shows how “lawyers sitting as jurors . . . is a terrible practice that encourages undue influence by a single juror in deliberations.” Dan Solove at Concurring Opinions says it means “we should have professional juries,” who know so much about the law they don’t have to lean on a law professor juror.

These proposed solutions aren’t helpful, primarily because nothing about Robert Martin’s jury experience exposes a problem that needs to be solved. What’s troubling instead is the appellate court’s reaction, and its remarkable naiveté about how juries really work.

Here’s what lawyers and judges need to understand: Jurors rely on each other’s experience and expertise. They do it routinely, instinctively, constantly. In the mock trials I’ve observed, it has happened in every single case, in ways that routinely shift outcomes. In the real jury deliberations videotaped as part of the Arizona Jury Project, the respected scholars Neil Vidmar and Shari Diamond wrote that 61% of jurors’ conversation consisted of “inference exchanges” in which jurors sought guidance from each other about what inferences to draw from the evidence — guidance that often came from jurors’ “personal knowledge of the world.” In a patent case about electricity, the juror who is an electrician will guide the others.

In a criminal case where the defendant claims police abuse, the police officer — or the juror whose son was arrested — will be leaders. In every case, one juror will have more relevant knowledge than the others, and the others will rely on that.

“A ‘tendency’ to influence the verdict.” (Exactly.)

The New Jersey appellate court’s reasoning, that “Martin’s explanations to the jury had a ‘tendency’ to influence the verdict,” puts us on an unmarked path toward reversing every verdict, or at least every verdict that a juror was unfortunate enough to write honestly about.

Nor do Profs. Turley and Solove’s solutions get us any closer to a jury of truly equal voices. If we banned lawyers without banning other juror experts, we’d be making a meaningless distinction — but if we banned all juror experts, we’d ban a huge portion of the pool. As to professional juries, Scott Greenfield explains here why they’d lack the one thing we do count on from juries, the public trust.

Then there’s the question of why we’d want to silence knowledgeable jurors in the first place.

The whole point of juries is to bring the wisdom of the lay community into the courtroom. We instruct jurors to use their common sense and their experience. Trial lawyers who understand the role of juror expertise will often strike a juror expert in a particular case — but there is no reason why they should be broadly denied the right to serve.

Of course the jury system isn’t perfect. Scott Greenfield overstates it, I think, when he concludes that “[i]t’s a terrible system, and whether it’s better than all the others depends on whether today is the day that your ox is gored.” In fact, there’s significant evidence that juries work well overall, much of it gathered in the recent book by Prof. Vidmar and Cornell’s Prof. Valerie Hans, American Juries: The Verdict. But Scott has evidence on his side too. (It’s one of his longest posts, and that’s saying something.)

The point is that whether or not you like the jury system as a whole, the Robert Martins of the world don’t need fixing. Jurors whose expertise provides guidance to other jurors are not part of what’s wrong with juries. Courts who don’t understand how juries work, and respond with draconian urgency when they glimpse a normal jury in operation, are likely to create more problems than Robert Martin ever did.

Related posts here:

• Experts — Or At Least Jurors — In The Box
• A Tale Of Juror Expertise (on Martin’s case)
• Law Professors Watch Jurors, And Learn
• News Flash: Lawyers Are Leaders On Juries
• More Thoughts On Lawyers On Juries