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 this concept. Trial lawyers must consistently discipline themselves to making the message simple. A consistent theme with a simple message is a fundamental part of communication.
A recent trial illustrates this point. On November 6 James Stewart, a writer for the New York Times, published in the Times an article entitled “Dewey’s Jury’s Deadlock Exposes a System’s Flaws.” The article was about criminal charges of financial fraud against senior partners in what was one of New York’s most prominent law firms after it financially collapsed. The trial lasted 4 ½ months. The jury of seven women and five men deliberated for 21 days only to be unable to render any verdict on the 93 counts. The jury was dismissed as deadlocked.
The information about the jury deliberation has lessons for us. It turns out they were unable to agree on even the most basic definitions due to the complexity of the prosecutions trial 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 like why two of the defendants had such deep suntan’s. 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 close their eyes and refuse to listen when other jurors spoke. In that regard, we know that given complex messages, jurors first try to understand, then they become angry and stop listening. These are angry jurors because the message is too complex and not understood.
The law required a unanimous decision. It turns out however that preliminary votes on the most serious charges were 11 to 1 not guilty for one defendant, 10 to 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 regarding the preliminary vote count, that extensive research suggests that two thirds is a critical mass and getting a verdict. “In other words, nine or more jurors can often get the holdouts to join the majority. But, with four or more jurors, they receive enough reinforcement from fellow jurors to stand their ground. That’s where you tend to get hung juries.”
The professor noted that while prosecutors tend to like multiple counts hoping something will stick- there were 150 in this case – too many resulted in confusion. He also promoted the virtue of simplicity. He quoted one of the jurors to illustrate this. The juror had said: “I just wanted the prosecution to give it to me and one sentence.” The professor pointed out:
“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. 4 1/2 months of trial involving 150 counts of felony charges is destined for deadlock unless the prosecution is successful in simplifying the issues. Frankly I don’t know how one would simplify issues involving 150 counts. I’d say this case was destined for failure before it ever started. Let’s resolve to be short, simple and to the point in all of our communications with juries.