Paul Luvera, The Daily Record Newswire
I've written and lectured for many years about the essential concept of simplicity in trying lawsuits. Extensive research has demonstrated repeatedly that the message must be simple and consistent.
The "rule of three," that is, that lists should not be longer than three points, is based upon that concept. Trial lawyers must consistently discipline themselves to make the message simple. A consistent theme with a simple message is a fundamental part of communication.
A recent trial illustrates the point. On Nov. 6, James Stewart, a writer for the New York Times, published "Dewey jury's deadlock exposes a system's flaws," which chronicled the criminal charges of financial fraud against senior partners in what was one of New York's most prominent law firms before it collapsed.
The trial lasted four and a half months. The jury of seven women and five men deliberated for 21 days, only to be unable to render a verdict. The jury was dismissed as deadlocked.
The information about the jury deliberations contains valuable lessons. It turns out the jurors were unable to agree on even the most basic definitions due to the complexity of the prosecution's approach. They sent a note to the judge asking for an explanation of what it means to "deliberate." They expressed confusion over the concept of burden of proof. They debated irrelevant issues such as why two of the defendants had such deep suntans.
There was a great deal of hostility in the jury room. Some jurors refused to budge or explain their positions; others seem to change their minds constantly. Some jurors closed their eyes and would not listen when other jurors spoke. In that regard, we know that, given complex messages, jurors first try to understand, then become angry and stop listening.
It turns out that the preliminary votes on the most serious charges were 11-1 not guilty for one defendant, 10-2 not guilty for another, and 7-5 guilty for a third defendant.
The writer consulted with a professor of psychology at Indiana University and author of the book "Jury Decision-making." The expert noted that extensive research suggests that two-thirds is a critical mass in getting a verdict: "In other words, nine or more jurors can often get the holdouts to join the majority. But with four or more, they receive enough reinforcement from fellow jurors to stand their ground. That's where you tend to get hung juries."
The professor went on to say that while prosecutors tend to like multiple counts in hopes that something will stick - there were 150 in the Dewey case - too many result in confusion. He also promoted the virtue of simplicity. He quoted one of the jurors: "I just wanted the prosecution to give it to me in one sentence."
The professor continued: "They're hungering for a story to tie together all these disparate facts. That's very consistent with how scholars think about juries and jury trials. Trials are like movies. There is a plot, and if the plot doesn't make sense, jurors get confused."
The lesson here seems obvious. Four and a half months of trial involving 150 counts of felony charges is destined for deadlock unless the prosecution is successful in simplifying the case.
Frankly, I don't know how one simplifies issues involving 150 counts. I'd say the case was destined for failure before it ever started.
So don't doom your case before the trial even begins. Resolve to be short, simple and to-the-point in your communication with the jury.
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Paul N. Luvera is the founder of Luvera Law Firm in Seattle. He was elected to the American Trial Lawyers Association Hall of Fame in 2010.
Published: Tue, Jan 05, 2016
