Can we fix our jury system? Book Review: The Jury Crisis by Drury R . Sherrod (Lanham, Maryland: Rowman & Littlefield, 2019)

In almost 40 years as an attorney, I have been guided by a few principles. One is to honor the jury system as part of a strong democracy, which allows for laypeople to make decisions involving life or death or damage awards without the possibility they will be influenced by a more powerful party. The second principle is that most jurors make up their minds on a verdict during voir dire or opening statement and they look to confirm their decision with the evidence. On the flip side, they will reject evidence that conflicts with their beliefs. In other words, story is everything from start to finish.

The Jury Crisis by Drury R. Sherrod, a trial consultant, who writes from a perspective of cognitive social psychology, is consistent with these principles. The book goes beyond these principles to explain the evolution of juries, how jurors hear the evidence, and the process of deliberations. The fundamental point to be gathered as each topic is explored is that jurors form a story of the incident and evidence is used to build up the story.  Mr. Sherrod writes, “Jurors’ relevant attitudes and life experiences provide the lenses through which they evaluate the evidence.”

Mr. Sherrod points out that when jurors are presented with a narrative, they will almost always prefer that to a list of the evidence. Despite this finding, young attorneys are taught that an opening statement should present a roadmap to the evidence. As a result, they often give opening statements that list the evidence to be presented, rather than weaving it into a story.  That approach should change after reading The Jury Crisis.

Mr. Sherrod points out that the origins of the jury system began with people in the community being presented with the “facts” of an incident.  Witnesses generally were not called to testify. The “jurors” decided cases based on their own personal experience or sometimes discussing those experiences with the other jurors. The jurors might knew the parties involved and could impart their impressions of a defendant or an accusing party. Trials were generally short affairs.  

As most of us know, if a case goes to trial, it is not a quick event. Unlike centuries ago, we now have discovery, which could include acquiring thousands of pages of documents or deposing witnesses. The attorneys might also prepare briefs to assist the judge in deciding the case, and in deciding if evidence should be admitted or precluded at the trial. Experts are now commonplace, often required. If you designate an expert or two, the other side will do the same.  No one wants to try a case without an expert if the other side has one. All of this has contributed to the expense of litigation and the rise of alternative services, such as arbitration, mediation and private judging.

As Mr. Sherrod makes clear, resorting to professionals to decide a case does not necessarily mean these experts are free from personal biases of deciding cases on the basis of their personal worldview. These alternatives may be favored because they lack group pressure or jurors with little education. But resorting to professionals can be criticized because they may involve a bias toward the ongoing client. A corporation or government that frequently engages in mediation or arbitration can be an ongoing source of income for a mediator and arbitrator, so favoritism, both conscious or unconscious, can be involved. Such mediators and arbitrators may face the possibility of a bad reputation within this group if they lean too heavily in favor of individual plaintiffs. A single decision can end a mediator’s career.

Mr. Sherrod offers suggestions for preserving the jury process that includes resorting to a narrative approach in both voir dire and opening statement so that the jury can build the story.  He suggests that it is a mistake to tell jurors not to discuss the case until all of the evidence has been presented, rather than discussing it as it comes in, or being unable to ask questions. Mr. Sherrod also discusses the often confusing jury instructions. And finally, he looks at jury verdict forms, which are often long and confusing. (In my experience, it is difficult for attorneys to craft verdict forms that are simple and easy for laypersons to understand. One can address this problem by having laypeople reading draft verdicts to determine if a juror could easily understand what information is sought.)

Let me add another point here: While the book indicates it is written for trial attorneys, it is easy to understand and might be a great book to give to clients. In reading The Jury Crisis, clients might understand the risks they face in going to trial. So often, I have heard clients ask how a jury or judge could decide in a particular way. This book will shed some light on this decision making process.

As Mr.Sherrod considers the end of the jury system, I could also point out the jury system is burdened by our current lifestyles. Most people are stressed out and working hard to put food on the table. The days of one parent working while the other remains at home are rare; most households have two workers and some are even working more than one job. Imagine being told that you have to put your work and your life on hold while sitting in a courtroom for seven to eight hours a day, while receiving less than minimum wage. Add to that the resentment of jurors who cannot find a way to avoid jury service, even though they realize rich and poor people have better excuses to avoid jury service. Then we make them sit through long trials while experts speak in a language they don’t understand when all they want to know is whether the defendant did something wrong.

I am in favor of the jury system as it really encompasses our beliefs in a true democracy but we have to find a way to present cases in narrative form that avoids hours and hours of wasted time and expense. We also have to keep teaching our children - and acting as examples - that contributing to the jury system is one of the responsibilities we share as citizens.