Houston...the Blagojevich Jurors Have a Problem
“It was like, ‘Here's a manual, go fly the space shuttle.’”
–Steve Wlodek, juror in US v. Blagojevich, as quoted in The New York Times, August 18, 2010.
I had two immediate reactions when I read this quote from the Blagojevich jury. The first was sympathetic; the second, far less so. My initial thought, “Those poor people, two weeks deliberating and no agreement on 23 of 24 counts!” was almost immediately replaced by a far more jaded one—“At least someone bothered to let them take a glimpse at the manual!”
Admittedly, I am a casual observer of this trial and, as such, have neither a meaningful ability nor a desire to criticize anyone about the particulars of this case. Nevertheless, over the past 30 years, I have seen too many jurors (and mock jurors) walk away from cases with the same frustrated and bewildered feelings described by Steve Wlodek—sometimes even after they somehow managed to reach a verdict.
We demand a lot from jurors and, truth be told, we often fail to give them the tools they need to do their job properly. We take 12 people, pull them away from their busy lives, and require that they resolve some of our most important disputes. Jurors spend days (if not weeks) listening to topics about which they otherwise have no personal knowledge, involving people with whom they have no prior relationship or continuing interest. After this, we read them a series of instructions, which are far more complicated than anything the jurors have ever before encountered (except perhaps on Internal Revenue Service forms) and, with cursory thanks, send them off to “do their duty.” It is a wonder they ever reach a unanimous decision and no wonder they so often get frustrated attempting to do so.
Lest there be any question, I greatly respect jurors. The vast majority of them take their jobs seriously and firmly believe that, given the right tools, they will not only reach a verdict but will decide the case correctly.
So, how do we help them? At the risk of suggesting that the answer is simple (which it is not) we need to do more: simplifying, educating, anticipating, annotating, and arguing.
1. Do more simplifying
Ironically, some of the best advice about trying cases comes from an Illinois politician who unsuccessfully ran for the very political office Gov. Rod Blagojevich is alleged to have been peddling. Abraham Lincoln once advised, “In law, it is good policy to never plead what you need not, lest you obligate yourself to prove what you cannot.”
Discard theories, causes of action, or criminal counts that weaken your position. Avoid arguments, defenses, or pleadings—no matter how clever—which do not provide a direct route to your verdict. Jurors find wading through a laundry list of arguments burdensome and confusing. Avoid relying on arguments made in the alternative; jurors see this approach as disingenuous.
Think twice before you overcharge a defendant or pursue a civil claim that theoretically could yield huge damages but is most likely impossible to prove. Consistently getting solid hits is far better than only trying to slam homeruns and constantly striking out in the process.
Am I advising that you should necessarily play it safe, that you should never take a risk or stretch? No. Instead, prune your case to what is important. This may consciously involve taking a risk, but it will allow you and the jury to focus on what really counts.
2. Do more educating
The best trial lawyer educates his jurors by providing them with the details and the perspective to use those details. If information is power, then the types of information you obtain by developing and maintaining a perspective are among the most powerful of tools. Perspective allows jurors to appreciate nuance, to understand the thematic glue that holds the facts together, and to perceive and articulate what really motivated the key players to do whatever they are alleged to have done.
In times of doubt, when jurors are not sure what they should do or how they should respond, perspective gives jurors something to reference. It provides an overall approach that often keeps them from repeatedly running into a brick wall or (even worse) just giving up in favor of your opponent.
Learning something new cannot take place in a factual vacuum. The first step in learning requires that the student (in this case, the juror) be able to compare that which is new with something that is already familiar. These familiar concepts are what I call toeholds. They can be analogies, well-known facts, reminders that we are all driven by human emotions—the list is endless. The important point is to use these basic teaching devices to help your jurors begin to understand and continue to learn about your version of the case.
3. Do more anticipating
While the court may not read the actual instructions to the jury until near the end of the trial, if you do your job right, your jurors should be familiar with the key concepts and terms in those instructions much earlier. You need to anticipate what the final jury charge will include and, right from the outset of your case, begin introducing these concepts to your jury.
This process, which I call teaching to the final exam, requires both effort and subtlety. Effort, in that you must develop an early familiarity with the likely jury instructions; subtlety, in that you must avoid overtly instructing the jurors on the law–that is the judge’s carefully protected job. That said, you can incorporate concepts that parallel those in your instructions by inserting them in your case themes and witness testimony, thereby not only conditioning the jury but also laying groundwork for your closing argument.
4. Do more annotating
If you look up a word in a dictionary, you will find that the entry usually includes both a definition and example of that word used in context. In some dictionaries, you may even find a small picture to help explain or illustrate what the word means. This form of annotation provides the user with the context necessary to understand and use the word effectively.
Apply a similar technique to your verdict form and jury instructions during closing argument–annotate them by creating a series of interconnected graphics or examples to explain these terms to the jury and convince them that your version is the correct one. Start with a key question on the verdict form. Read it to the jury and show them how the jury instruction defines certain of the key concepts in the verdict. Remind the jurors of the key exhibits or bits of testimony that support your interpretation of these instructions. Argue that the evidence proves that yours is the correct version of the law and facts. Finally, return to the verdict form and show the jurors how to fill it out in the way most advantageous to your client’s position.
When you walk the jurors through the jury instructions in closing, take full advantage of what is there. Most lawyers rely on jury instructions for only one purpose—to define the elements necessary for one side to prevail on a claim or defense. They ignore that the instructions have other bits of helpful material, including protocols that jurors should follow in response to common situations that develop during trial and deliberations.
5. Do more arguing
Closing argument should be one of the most important parts of your case. It should be more than merely telling them what you already told them. It is time to explain, to pull things together and help jurors feel as well as understand why you are right and should prevail.
While the 12 individuals on your jury may agree on the verdict, they are not all likely to get to that verdict the same way. In fact, while they may agree on who should prevail, they may completely disagree on why. This reflects the fact that people are motivated by different core values. A juror’s core value is what he would rely on and use to judge people and events if he could be king of the universe for a day. These core values include compassion, fairness, unemotional objective criteria, common sense, basic social mores, etc. As you argue, consider how to effectively appeal to each.
These rules won’t guarantee that your jury will reach a unanimous verdict, but they will make you a better advocate and decrease the chances of bitterly disappointing and frustrating your jurors.
This article originally appeared in the San Francisco Daily Journal on September 13, 2010.
Appeared in The San Francisco Daily Journal
September 13, 2010