Lawyers Are Your Juries Paying Attention?
January 2008
Judge Judy and Judge Posner. You have just witnessed history the first time those two have ever been in the same sentence.
One is the most often cited appellate court judge in the country; the other makes $25 million a year. And while Posner would never suggest that trials should resemble the "Judge Judy" courtroom, his recent dissent in the appeal by now-Wisconsin resident George Ryan contained some telling trial advice for lawyers.
"The longer the trial, the less likely the jury is to be able to render an intelligent verdict. Jurors become overwhelmed by the volume of evidence and numbed by its repetitiousness. Their attention flags; their minds wander; the witnesses -- get mixed up in the jurors' minds, or forgotten." (United States v. Warner, WL 3101807 November, 2007).
You may be thinking, "but he was talking about a six-month trial." Too narrow a reading. His opinions often are commentaries relating to the everyday practice of law. Most likely this was simply the case in which he chose to raise a concern about trials taking too long.
Their attention flags; their minds wander.
Is there any wonder why?
First of all, most jurors don't want to be there. Is there a lawyer in Illinois who has not been approached and asked, "Hey, do you know how I can get out of jury duty?" But once you have them there, how long do you truly "have them"? How long can you keep them focused on the trial? The juror who doesn't want to be there in the first place will only become more frustrated as the trial drags on. As a trial gets longer, "jurors become bored, impatient, [and] irritated" (United States v. Warner, WL 3101807).
While we think every question is necessity, a juror may see some questioning as tedious and dislike a lawyer for that.
A few years ago I had an opportunity to interview a number of jurors following verdicts they had reached on their cases. They were asked about how they personally came to their decision. More than 60 percent commented on liking or disliking a lawyer and how he or she presented the case. One said the lawyer was fat and sweating all the time and "that didn't help."
We are taught as attorneys to be detail-oriented, thorough, and to cover every fact to prove or refute each case. The presentation of evidence inside the courtroom is deliberate.
Just the opposite on the outside.
Information comes at a lightning-fast pace and we are becoming accustomed to that. It makes us less patient. Go back to the first time you ever tried to access the Internet.
It didn't matter that it took a full minute to get there. Now, if it doesn't pop up in three seconds our hand starts repeatedly clicking the mouse like the guy who pushes a lit elevator button 60 times. (Why, why, why do people do that?)
Worse than impatience is the very real possibility that technological advances have resulted in shorter attention spans.
Two Harvard psychiatry professors, Edward Hallowell and John Ratey, have studied the influences that technology and the rapid daily influx of information can have on people. They have found that technology can affect creativity, focus, and result in shorter attention spans, a condition they call pseudo-attention deficit disorder. ("Driven to Distraction," by Edward M. Hallowell, M.D., and John Ratey, M.D. Simon and Schuster (1995)).
You work for years gathering evidence, and when it's time for your client's day in court, the audience you get may be impatient folks with a declining attention span who don't want to be there in the first place.
Great.
Compare that to the 6.5 million people who choose to watch Judge Judy every day. Millions more watch a host of other daytime courtroom judges. CBS Television Distribution was contemplating another courtroom show with Larry Seidlin, the crybaby judge from the Anna Nicole Smith case.
While many lawyers promptly dismiss such shows as "TV garbage," what can we take from these? People are watching. They are paying attention. That's what trial lawyers want from juries. The shows don't have time for much detail and get right to fight.
Certainly we can't cut things short for entertainment purposes. That would be malpractice.
We could object more under Federal Rule 403. "Although relevant, evidence may be excluded if its probative value is substantially outweighed -- by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
But that's not going to do it. Maybe we have to ask ourselves a similar question to that so often put to juries. "Think about your own life experiences" when weighing the evidence.
Shouldn't we think about our own life experiences when presenting it? Do you want to sit on a jury for a long trial?
Maybe Judge Posner and Judge Judy are both onto something.
That's history times two. dheilmann@clausen.com
