May 21st, 2015

Jury Selection, Brooklyn Style

Brooklyn’s county courthouse, 2008. Photo credit: me.

Two recent articles in Reason by its Editor in Chief, Matt Welch, raised issues about New York’s jury selection process and are very much worth discussing. Welch, as you’ll see, didn’t find the experience as amusing as my screenwriter-brother, or get any of the hoped-for excitement that my niece Ellen wanted, and certainly didn’t appreciate it the way I did when I sat jury duty many moons ago (and was selected).

So on to the main event: Welch. When I first read the first of his two articles in his libertarian oriented magazine, I was ready to mock, parody and lampoon his never-ending stream of whines, complaints, grumbles and gripes. That was my gut reaction, and it was going to be fun.

But there was one big point he made and one big point that he botched, and both are deserving of attention.

First, his take on the selection process: He bitched, whined, moaned and complained about the Brooklyn courthouse architecture, the dirty plaza in front, the security, and the ever-so-slow orientation and waiting to be placed in a voir dire pool to be questioned by lawyers. (How Jury Duty Almost Turned Me into an Anarchist)

When he finally gets there, he sounds like Arlo Guthrie showing up to his draft board after a long night of drinking — prepared to be injected, inspected, detected, infected, neglected and selected. In meeting the lawyers for the case, what type of mind set do you think he started with?

Is this stuff important, or just superficial belly-aching by someone looking for material to write about, as he did in his book about similar issues?

Answer: It’s important!! You don’t shoot the messenger because you don’t like the message.  He made a valid point that some jurors may be poisoned by the process itself, even before actual selection started. Anyone who practices law in Brooklyn knows we need vastly more room and judges.

And court administrators should take note, to the extent that they have the capacity to actually do anything about it within the tight financial constraints that the Legislature imposes.

Subway art, Borough Hall station where the courthouses are. Photo credit: Me.

Wouldn’t everyone — jurors, lawyers, judges, clerks and officers — rather be inside that great, big, new, shiny federal courthouse down the block? You betcha. It’s vastly more civilized, and jurors don’t start the trial phase, if they get there, feeling abused. The building itself, and the federal administration of it, oozes competence and justice (much to the chagrin, likely, of criminal defendants).

And feeling abused is important, for then the aggravations and irritations of the process itself may simply confirm pre-existing biases to the detriment of one side or the other.

Confirmation bias is a huge issue to deal with in jury selection (and the issue Welch botched). Because many people instinctively look for facts to “prove” the thoughts they had before hearing evidence, or reading a news story. They want to know that their opinions were “right.” This is most commonly seen in politics, where everything  on “the other side” is wrong.

Welch states that he wants to do the right thing, claiming near the outset of his piece:

Jury duty is a chance to bond with fellow citizens you might not otherwise meet, peek under the hood of our flawed judicial system, and do our small part to advance the noble democratic ideal of participatory justice.

And he also writes, in his own defense that:

…I would also say that within libertarianism there’s a broad appreciation that the civil system provides the kind of redress unavailable in places like Western Europe, for example. And at any rate, I don’t have strongly held opinions about it; my strongly held opinions are about the criminal justice system.

But when I look under the hood of his writings, in just these two pieces, I see a pre-existing proclivity, and the concern any lawyer would have for potential confirmation bias if he were to sit in judgment. Describing the case as he first hears about it in the jury selection room, he writes:

It is, to my chagrin, a civil trial, not a criminal one, involving the category of incident one might see advertised in a subway car.

Ouch. OK, he is entitled to his opinion for sure, regardless of whether I like it or not. But it’s hard to miss the underlying bias.

In his second piece, entitled How Lawyers Pre-Try Cases During Jury Selection, he tries to claim the voir dire process (and the jurors) are abused by the lawyers trying their cases in the room without a judge or evidence.

And he continues his complaints by dropping another clue as to his underlying feelings, calling plaintiff’s counsel a “Court Street Lawyer” with a link to a derisive description.

Moses with the law, at the entrance to the Brooklyn courthouse. 2008. Photo credit, me.

Now the vast majority of people will say, and likely believe, that they can sit fairly and listen to evidence, if the question is put to them directly. But this is a very superficial question, and ignores the underlying biases a juror may have. And that, in turns ignores the very legitimate concerns that such jurors will engage in confirmation bias as they listen to the evidence. This is what the trial lawyer needs to worry about, regardless of who they represent.

Welch himself knows about confirmation bias. On just the 4th page of his book The Declaration of Independents, he writes with co-author Nick Gillespie:

You may have heard of confirmation bias, whereby people tend to notice and believe whatever rumors, news stories and quasi-academic studies confirm their world view.

But seeing it in others is altogether different than seeing it in the mirror.

It was during that second piece, that he argued that the lawyers were looking to get rid of all the potential jurors with expertise. But this is not what trial lawyers do. We look to get rid of those with deep-seated biases, because we worry that such people will simply look for evidence during a trial to confirm them.

One example of what Welch thinks is an attempt to argue the case in the jury selection room and condition the jurors is the common question trial lawyers ask when talking about money and damages, “If you thought the injuries were substantial would you hesitate to bring back a substantial verdict?” But I (and so many others) ask it because I want to know about a political bias — do they have any feelings about one-size-fits-all damage caps? I would consider that information to be pretty important. So would my adversary.

And the reverse is also true when discussing the issue of damages, and is also asked: If the plaintiff shows only minimal injuries would you have any problem bringing back a minimal verdict? I’ve yet to meet a defense lawyer that is a potted plant. (The wise plaintiff’s lawyer asks both questions – asking about both the substantial and the minimal.)

Another example of bias are potential jurors who work in the medical field, sitting in a medical malpractice case. Are these people automatically excused due to their expertise?

Some would be inappropriate due to subconscious concerns about what their co-workers would say if they brought back a plaintiff’s verdict. It’s the lawyers job to ask about that bluntly and make the juror ponder it.

Yet others might acknowledge that they have seen all manner of bad things happen in a hospital. So dumping medically educated jurors or keeping them could go either way.

And more important than the medical practitioner is the parent of one. For now emotion/bias is even more likely to be a factor as the lawyers fear this juror seeing their own kid as a defendant.

Thus, Matt Welch’s two Reason articles are useful: Useful in describing the oft-times miserable experience that some jurors have, so that court administrators and legislators that hold the purse strings can address them and so that lawyers can appreciate what these potential jurors have gone through before the first questions are even asked.

But it is also useful in ways Welch might not have appreciated, as a good example of seeking out the underlying biases that potential jurors might have, and addressing head-on the concerns about them engaging in confirmation bias as they listen to the evidence.

Addendum: As I re-read this piece this morning while sitting in that same courthouse, just after publishing, I remembered I had written back in 2008 about the highly scientific method that I use for jury selection: Who Sits Jury Duty? (The Turkewitz Beer Test)



May 14th, 2014

McDonald’s Coffee Case, 20 years Later — And Why It Is Still Important

Stella Liebeck v. McDonald’s, a/k/a The McDonald’s Hot Coffee Case, continues to be in the news despite the fact it was tried 20 years ago in New Mexico. 20. Years. Ago.

It was in the news two years ago with the documentary Hot Coffee.

And it pops up this week via postings at Abnormal Use and Overlawyered, among other places, claiming there are myths that need debunking, as if 20 years of analysis wasn’t enough.  Even I’m bored with the subject, and this type of case fits in my wheelhouse, and is especially important to anyone that tries cases in front of juries.

Was this a frivolous suit because hot coffee is supposed to be hot? Or was it a perfectly reasonable case of an excessively dangerous product (scalding coffee) with an inadequate warning as the jury found? Should the case be better known, and summarized, as Hot v. Scalding?

You know what? My opinion doesn’t really matter. And yet I talk about it every time I pick a jury. Every. Single. Time.

Why? Because people form opinions based on headlines they see in the papers, be they digital or paper. People don’t form opinions based on run-of-the-mill cases because those hear about them. Only the outliers make headlines (which is often compounded by lousy reporting).

And so I bring the subject up, time and again, asking how people feel about this ancient and (in)famous case. I don’t try to change their minds. I don’t try to argue that case. And that is my point.

All cases are different. We all know that intellectually, but it is the emotional part of the brain that lawyers need to worry about. No matter which side of the -v- we happen to be standing on, we want to know– we need to know — if there is some preconceived notion about the overall subject (lawyers, litigants and lawsuits) that the person might have.

If a potential juror is going to have an opinion or emotional reaction (that they will admit to) it is likely that the McDonald’s coffee case will bring it up.

I’m bored with the actual details by now, yet I talk about it all the time. And so should you if you are picking a jury.

It doesn’t matter what you think. It only matters what they think.


December 9th, 2013

Another Turkewitz Sits Jury Duty

Ellen Turkewitz

Ellen decides to crop her brother out of the shot.

Another family member sits jury duty. Niece Ellen Turkewitz now joins brother Dan and Mrs. NYPILB giving their bird’s eye view of the process, which is altogether different than what we trial lawyers see.


When I got the notice to serve jury duty a few months ago, I was really excited– As a Law and Order fan, I had visions of courthouse showdowns and action packed trials.

I woke up on Thursday morning in the midst of a pretty terrible cold. I trekked to the courthouse and found a line of 40 people deep waiting to get in… in the pouring rain. The security team working the x-ray machines were moving at a glacial speed, barking orders at those trying to pile into the building to avoid the downpour outside.

Once I was seated in the “jury duty holding pen,” I awaited instructions from the clerk monitoring the room. You think your job is a snooze? Can you imagine telling a group of frustrated, wet and cold people over and over again that they needed to sit and wait until their name was called? To be fair, the clerk did crack a few jokes attempting to make the situation a little less dull.

By far the most interesting part the experience was watching other people and their reactions to the clerks’ instructions. “New York City has no one day trials. If you get chosen, you will be on trial for more than a week. If this is a problem, go to the other courthouse to reschedule your date,” he says.

Cue groans and eye rolls. About 20 people stand up and shuffle back into the rain. “You cannot serve if you don’t speak English.” About 10 more people get up and leave ( my question? How did they understand that last sentence if they don’t speak English?)

“You cannot serve if you are a convicted felon” comes his next line. At this point everyone giggles and looks around to see who will stand. Sure enough, about 10 more people get up, including the Burberry clad girl next me. Humm… makes you wonder.

In the midst of the clerks’ instructions, people kept going up to his desk to ask him questions. I was silently sceaming at them to sit down and wait for the clerk to finish his speech– I couldn’t believe that people thought it was okay to interrupt him mid sentence to ask a personal question!

Around 10:15 the clerk received the first case. He began to call out the names of selected jurors, but mine was never called. I was bummed. I was looking forward to hearing a case and living out my Law and Order dreams. He told us to sit tight and he would let us know when the next case came in.  Around 12:30, we were given a two hour lunch break and told to return at 2:15. The fun part of jury duty had begun!

When we returned from lunch, the clerk repeated his instructions to be patient and wait for the next case. Out came the books, laptops and newspapers. At 2:45 the clerk announced that there would be no more cases that day and we were free to go… until the next day. I was at a loss of what to do with myself! Who gets out of work before 3pm?!

When I woke up Friday morning with an even worse cold, my first thought was “can I call sick to jury duty? Who pays my salary if I do? Will I have to go back next month to repeat this tedious process?” I dragged myself down the court house, waited in the pouring rain (again) to go through security, and took my seat in the waiting room. The clerk told us no new cases had come in yet that day and he would update us later.

As I battled my runny nose I noticed one very important thing- There were no tissues! You would think that the city of New York could spring for some Kleenex if they were going to hold us hostage for the day. Thankfully, at 12:15 the clerk announced that NYC was so safe that there would be no more cases that day and we were free to go (for the next 6 years!).

While I was slightly disappointed that I never got to hear a case, my desire for a nap and some dayquil overpowered everything else.

Do I feel like a made a difference in the justice system? Not really. But it was an interesting two days of people watching and I have offically completed my civic duty for the next 6 years.


March 8th, 2013

Should Jurors Be Allowed to Ask Questions at Trial?

Peter DeFilippis

Peter DeFilippis

Out in Arizona, Jodi Arias is on trial in a high profile case in which she is charged with the murder of her lover, Travis Alexander, after a day of rough sex. He’d been, according to news accounts, “shot in the head, stabbed and slashed nearly 30 times and had his throat slit.” She claims self-defense.

But what jumped off the page for one of my brethren of the New York bar, Peter DeFilippis, is that jurors were allowed to ask questions. That isn’t something we see too often around these parts.

Without further ado, I turn my blog over to the talented DeFilippis as a guest blogger, who after 24 years of practice, has something to say on the matter….

The jurors in the highly publicized Jodi Arias case recently submitted to the court over 100 questions for the defendant to answer even after the prosecutor spent days grilling her over every last detail in connection with her self-defense argument. Arizona is one of just three states that allow jurors to pose questions to witnesses after prosecution and defense lawyers have finished their questioning. From the perspective of someone who’s spent some time in the well of the courtroom, I wish New York judges would in the interest of justice, allow jurors to pose additional questions of the witnesses in civil cases even if one side objects to the practice.

A universally frustrating aspect to civil trials is that once jury selection concludes the lawyers can’t communicate with the jurors. Generally speaking, jurors sit quietly during the trial presentation, they are expected not to ask questions, and perceive their role during the trial presentation as receptive rather than actively inquisitorial. If counsel were to so much as say hello to the selected juror in the elevator it may land the lawyer and juror in hot water.

During the trial the silence between the attorneys and jurors can be deafening: jurors yearn to ask the lawyers questions and lawyers would love to know more about what the jurors are thinking about their cases. When we interview jurors after a case has ended they sometimes wonder why we did not ask witnesses certain questions or probe specific areas. They are surprised to learn that we are often prohibited by the rules from discussing or presenting many seemingly relevant facts or issues. For example, we cannot divulge to jurors whether or not a defendant has insurance coverage applicable to the claims of injury. Disclosure of this to the jury may potentially result in an instant mistrial.

One way to alleviate this tension is to allow jurors to pose and submit their own written questions to the judge after the attorneys have finished their direct and cross-examination questioning of a witness.  This would allow attorneys to clear up any issues, misconceptions or concerns BEFORE jury deliberations begin.

There is no New York rule prohibiting this practice. Rather, the case law says it is a matter left to the discretion of the trial court. Some judges will advise at the outset if they permit jurors to take notes and/or ask questions. In my trial experience, note taking is fairly frequently allowed, however juror questions of witnesses are rarely sanctioned unless all sides consent. I have made the request on several occasions, but when defense counsel balks, judges will usually not initiate the process though they may properly do so.

If allowed at trial, essential to the process is for the judge to ask jurors if there are any questions and explain the mechanism whereby they could ask questions, i.e., whether it be during direct or cross examination or when the witness is about to leave the stand or at some other time. I think informally allowing jurors to raise their hands and orally ask questions, without judicial screening or consultation with counsels, could be highly problematic. Our high courts have held this is not the best practice. Conversely, utilizing written questions lends itself to an orderly function as opposed to a hand rising session which might invite a cacophony, confusion or other courtroom chaos.  Also, forcing one side or the other to publicly object to a juror’s question would strike me as highly prejudicial.

Well thought out and manageable procedures exist and are codified in other jurisdictions, such as New Jersey, where juror questions are allowed (See, NJ R GEN APPLICATION R. 1:8-8) even if all sides do not consent. The court makes its determination after all parties have been given an opportunity to address the issue, but they need not fully consent for juror questions to be implemented. The questions are first written down by the jurors and then presented to the judge.

The judge then takes the attorneys into chambers for a conference about those questions. Argument and clarification are held beforehand between the court and attorneys outside the presence of the jurors.  The judge tries to work out an agreement by the attorneys as to which questions should be asked, and whether the form of the question proposed by the jury should be altered or modified at all. If there is not agreement, the court decides the issue on its own. If allowed, the judge reads the question, in original form or as modified, to the witness. Since the judge is screening the questions, clearly improper ones are not asked. Attorneys shall then, if desired, be permitted to reopen direct and cross-examination to respond to the jurors’ questions and the witness’s answers.

I think this process insures that the jury is better informed and makes its decisions based more likely on facts gleaned from testimony under an oath than on conjecture. The individual juror is presumably happier and more satisfied if inquiries are answered via live testimony as opposed to not at all or by speculation in the deliberation room (which is frowned upon by the court). Keeping jurors interested and engaged through this active participation in the legal process is of paramount benefit to the litigants and jurists. Perhaps it might increase attentiveness and help to mitigate the tedium and boredom often complained of in connection with serving as a juror on a trial (especially a lengthy one).

Hearing from the jurors in this manner also helps the attorneys to gain some insight into the jurors’ thoughts and hints of major concerns with the case. Savvy lawyers may alter the presentation of their side based on the questions they are receiving and cover missing areas. This may also head off jury confusion which often leads to unnecessarily lengthy deliberations or inconsistent verdicts.   A definite plus is the insight gained by everyone involved from learning some of what is in the jurors’ minds before they make their ultimate decision.

Based on the above points, I would urge New York State judges to consider allowing our jurors to pen and submit written questions of witnesses during civil trials, as codified in other neighboring jurisdictions. Further, they should promote this open, interesting and interactive procedure during their trials even without the consent of all sides, as defense counsel may oppose juror questions strictly as a display of caution or matter of custom. I feel increased juror participation will aid our judicial system in achieving its stated, well known, goal which is to seek to provide justice for all.


February 7th, 2013

The Wrong Lawyers for the Job? (BigLaw Trial Attorneys Get Bench Slapped) – Updated

Dow is the defendant. But if the jurors fell asleep during plaintiff’s opening, Dow will win regardless of what they did, or did not, do.

Really, you just don’t see this too often. Lawyers do get called out for incompetence sometimes by judges, but it doesn’t really happen too often right after opening statements, and with BigLaw coming in from out-of-state to play on the field.

But sometimes you just might not have the right lawyer for the job. And in the well of the courtroom, in front of the jury, the right lawyer for the job is the one that can tell a coherent story. Not put the jury to sleep.

And these guys put them to sleep. Literally. In the first inning of the game.

The playing field of this dispute is federal court in Kansas City. The issue involves, according to the  Kansas City Business Journal that broke the story, alleged conspiracies to fix the prices of urethane chemical products known as polyether polyols that are used to make a variety of consumer goods.

The sides in this dispute must have felt that local attorneys didn’t know how to tell a story about price fixing, so they brought in the out-of-state big guns.

For the plaintiffs was Michael Guzman of Washington-based Kellogg Huber Hansen Todd Evans & Figel. This is an 83-attorney firm that one website comically calls a “boutique.”

The firm must be good, because, as per the firm’s website, they are absolutely awesome. The roster of attorneys:

includes former Assistant United States Attorneys, Assistants to the Solicitor General, and attorneys who have held senior positions in the White House, Federal Communications Commission, and the Department of Justice, including a former Assistant Attorney General and Counselor to the Attorney General. Almost all of our lawyers have served as law clerks to federal judges, and nearly one-third have clerked for Supreme Court justices.

Hey! I’m impressed!  OK?

On the other side, for the mighty Dow Chemical was David Bernickof mighty New York-based Boies Schiller & Flexner.  Are they impressive? You bet…just read their website copy:

While best known for landmark cases such as United States v. MicrosoftBush v. Gore, and In re Vitamins, we represent some of the largest and most sophisticated organizations in the world when the results matter most. In less than a decade, we have won and saved our clients billions of dollars in trials, arbitrations, and settlements. We have been described by The Wall Street Journal as a “national litigation pow­er­­house” and by the National Law Journal as “unafraid to venture into controversial” and “high risk” matters.

OK, OK, you are all now just as suitably impressed as I am.

First Guzman made “a lengthy opening statement for the plaintiffs.”  Then Bernick spoke for half an hour, handed it off to his colleague Hamilton Loeb of D.C. firm Paul Hastings (800+ lawyers) for another half-hour, then returned to Bernick for another 30 minutes.

Since I wasn’t in the courtroom I will defer to U.S. District Judge John Lungstrum who was, and who presumably has seen his fair share of trials. Was he as impressed with the lawyers as I was after reading their magnificent website copy? Would I be writing this piece if the jurors were enthralled with the legal skills on display?

OK Judge, take it away…and tell us how quickly the jurors lost interest in the story and fell asleep:

“Honestly, if I had to do it over again, I’d give you each half as much time as I did. I told you all again this is your case, you guys do it however you think you want to do it, but you have people at the beginning of opening statements who are taking notes, who were engaged and who were interested. About halfway through the plaintiffs’ opening statement, those people tuned out. Other people literally went to sleep for a while. I did not call them on it because that’s not evidence; it’s not the law.

Ouch. Not kind to plaintiff’s counsel at all. But don’t worry, he had words for defense counsel also:

“It’s the responsibility of counsel, if you want people to hear your opening statement, to present it to them in a way that keeps their attention. Defendants’ opening statement rambled all over the ballpark. I suspect nobody on the jury’s got any idea what they think the evidence is going to be except it’s going to be vaguely different from what the plaintiffs have in mind.

“Now I’m saying this to you all going forward, you owe to your clients and to this jury not to just do everything you possibly can do because somebody says you can, and I really regret giving you an hour and a half each for opening. … The closing arguments in this case will be considerably shorter than what I originally thought would have been the case because neither side evidenced the ability to focus themselves on what they’re supposed to be doing.”

I’m willing to bet that Kansas City has a lot of very fine trial lawyers, and I bet that many of them know how to tell a story without putting people to sleep or rambling all over the place.

I know nothing at all about this case, but this: If jurors fall asleep during plaintiff’s opening then the plaintiff loses. End of story; the case is already over. That shouldn’t happen in the first inning of a ballgame.

The plaintiff has the burden, and if the jurors don’t care about the case, then that burden will be impossible to meet.

Updated, 2/24/13 — Well, now about that? Despite being ripped by the judge for putting the jurors to sleep and rambling in opening, the jury returned a $400M verdict against Dow Chemical (out of one billion dollars in damages sought).

And that means I was wrong. So if I saw a judge rip lawyers in a similar fashion, I would hedge my bet, right? No, I wouldn’t.  As once was said, the race does not always go to the swiftest or the battle to the strongest, but that’s the way to bet.