Courting Stupidity

Why smart lawyers pick dumb jurors.

Walter Olson from the January 2003 issue

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A parade of evils that judges in other countries take pains to exclude can be seen almost routinely in many American courtrooms: inflammatory language and interruptions; "endorsement " by lawyers of their clients' cases; stagey eye rolling when their opponents make points; badgering of witnesses; appeals to sympathy or anger; blatantly rehearsed or coached testimony; comments that mislead, distract, or confuse; opening arguments asserting propositions there is no reasonable expectation of proving; closing arguments that endeavor to slip across propositions unsupported by what has come before -- all are tolerated in some, though far from all, American courtrooms. (Practices differ enormously from one locality to the next and even between different judges in the same locality.)

The opening and closing arguments of a trial, in which lawyers speak directly to jurors, are particularly susceptible to demagoguery. One attorney laments that the final argument stage "has increasingly turned into a quagmire of personal character attacks, impermissible reference to non-record evidence, and blatant pleas to jurors' sympathies and prejudices." Judges sometimes sit by while attorneys mischaracterize what has been said before, compare opponents to murderers or Nazis, insist on logical inferences that are not, in fact, logically obligatory ("If the gloves don't fit, you must acquit "), address jurors by name, and so forth. If a private lawyer pulls out a Bible and starts quoting from it in open court to explain why his opponent should lose, no one from the American Civil Liberties Union will let out a peep.

Why do so many judges in America feel constrained not to take control of trials? One reason, notes George Mason University law professor David Bernstein, is that the remedies available to them may seem inadequate to the task. Declaring a mistrial will usually seem like too drastic a reaction when a lawyer steps over the rhetorical line, yet merely instructing jurors to disregard any inflammatory bits is notoriously feeble. And on many matters -- granting demands for sidebar conferences or more time to question witnesses, for instance -- judges may accurately calculate that they face possible scrutiny from appeals courts if they take a hard line, but relatively little chance of such trouble if they let the lawyer have his way.

Getting the other side's evidence excluded can be as effective a path to victory as introducing prejudicial material of one's own. Such a pattern has turned up in quite a few "big" jury verdicts, starting with Anderson v. G.M., where neither the drunk driver's role in causing the crash nor the car's overall safety record made it into testimony. After managing to get the guilt and imprisonment of the drunk driver excluded, plaintiffs informed the jury that his fault consisted of "five seconds of bad judgment," whereupon the jury allocated to him only 5 percent of the responsibility for the injuries.

Chrysler lost a $262 million verdict, mostly overturned later, over a crash in which a little boy was thrown from a Dodge Caravan. The judge decided that jurors should not be told that the victim had not been wearing his seat belt or that his mother, driving the van, had run a red light. Suzuki lost a $90 million verdict after the trial judge barred evidence that the driver in the crash had attended a wine tasting just before the accident. (The suit was filed by a passenger in the driver's car.) The company got that verdict thrown out, but at the second trial the company was still barred from obtaining medical records on the driver's blood alcohol level.

From much of the advice on jury handling found in the literature, one might conclude that practicing lawyers have a low regard for jurors' acumen. Consultants advise that "logic plays a minimal role" in the courtroom and that the real trick is to identify the jurors' "psychological anchors." A brochure from the San Diego Trial Lawyers Association promotes a video entitled Trying a Case to the Two Minute Mind; aka Trial by Sound Bite. It promises to explain how "to streamline each element of a trial based on the fact that most jurors are used to getting a complete story within a two-minute maximum segment on the evening news. This video demonstrates the effectiveness of visual aids, impact words and even colors, to influence the juror's perception and thought process in the least amount of time." A trial lawyer must -- as prosecutor-turned-author Vincent Bugliosi has written -- "put a bib on the jury and spoon-feed it."

Race in the Courts

No modern story has done more to shake public confidence in trial outcomes than the ultrapublicized 1995 O.J. Simpson trial, in which, after a 133-day, $15 million trial, a Los Angeles jury took just three hours to acquit the former football star. Even within the American legal profession, so given to closing ranks against criticism, few cared to defend the Simpson trial's conduct or outcome. Instead, it was said to have been the fluke result of a never-to-be-repeated confluence of money, celebrity, bungling by the judge and prosecutors, and sheer luck. It was "aberrant," "one of a kind," "in no way typical," and so forth. "The Simpson case is [such] an anomaly that we cannot generalize from it," said a California jury consultant.

Actually, the Simpson acquittal stood in a long tradition: By the 19th century, prominent lawyers in the nation's turbulent cities were already making a name for themselves by winning acquittals for obviously guilty malefactors to the cheers of the mob. Such cases helped put the jury system itself under a cloud, despite its venerable pedigree in Anglo-American law and as a bulwark of liberty in colonial times. "The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity, and perjury," Mark Twain famously complained. We "swear in juries composed of fools and rascals, because the system rigidly excludes honest men and men of brains."

By the turn of the 20th century, uneasiness over the competence and objectivity of juries was already something of a tradition in itself. Many reformers during the Progressive and New Deal eras distrusted juries for their lack of expertise, their unpredictability, their cumbersomeness (trials are significantly longer and more expensive when juries are part of them), the lack of a written record explaining their decisions, and, of course, their susceptibility to demagoguery and sectional feeling. What did the most to undermine support for the jury during the 20th century was the record of Southern all-white juries, notoriously lawless and hostile to blacks' interests. It took many years after the fall of Jim Crow for Southern juries to lose their reputation as instruments of white prejudice.

Eventually, the expectation that jury outcomes would be racially tinged would subside -- for a while, at least. Yet neither race nor sectionalist sentiment ever actually went away as factors in lawyers' practical courtroom work. By the 1990s, concern about racially tinted verdicts was on the upswing again after a series of high-profile police brutality cases, where such factors had loomed large, as well as reports that prosecutors were finding it hard to obtain convictions on certain types of charges in heavily black cities such as Detroit. A law professor at George Washington University provoked an outcry when he suggested that it might be appropriate for black juries to decline to enforce the law in some prosecutions for nonviolent crimes.

With the Simpson case, the debate reached the front burner. Ironically, one of the most telling facts about the case was that neither the defendant nor anyone else had at first expected his race to play much of a role in what was to come. ("I don't see race," Simpson told a friend. "Race is not an issue." "To put it bluntly," Cochran later explained, "nobody thought of him as black.") But shrewdly perceiving their big chance for a diversionary issue, Simpson's lawyers eventually went to such unsubtle lengths as wearing garments of African kente cloth to court appearances.

When the jury was set to make an on-site visit to the football player's home, Simpson's defense team went so far as to spend a day stripping the walls of their many pictures of white girlfriends, celebrities, and corporate sponsors and replacing them with pictures of Simpson's black relatives, hastily done up as color photocopies at a local Kinko's and framed. In a crowning touch, Simpson's lawyers framed and hung up, in a conspicuous location, one of the most famous images to come out of the civil rights era, Norman Rockwell's 1963 painting of a young black girl being escorted to school by federal marshals.

Though it's a topic that defendants in lawsuits are extremely reluctant to discuss, racial sentiment is looming as a factor against them in more and more civil cases, with help from some in the plaintiffs' bar. Environmental lawsuits, such as those arising from low-exposure tanker spills or pollution in minority neighborhoods, have increasingly scored record-breaking verdicts as lawyers play the "environmental racism" card, arguing that the company would have taken better care of the neighborhood had it been white.

It would be difficult to imagine a mass tort that had less of a connection to race than the Engle case in Florida, since smokers are drawn from all ethnic groups. Yet having obtained a heavily minority jury, plaintiffs' attorney Stanley Rosenblatt proceeded to try the case for a racial payoff, putting experts on the stand who depicted smoking as particularly lethal to blacks and hammering away at the tobacco companies for advertising in black magazines and consciously pursuing black customers. (That black publishers, radio stations, and event promoters had avidly pursued such "targeted marketing," and even sometimes complained of racism when they weren't able to get enough of it, didn't enter the argument.)