Judging A Book: Conrad Reviews ‘The Jury Crisis’
By U.S. District Judge Robert Conrad
Law360 (April 15, 2019, 4:22 PM EDT) —
This article is part of an Expert Analysis series of book reviews from judges.
Every call to arms to save the “vanishing jury trial” is important. For it is an institution worthy, and in dire need, of saving. Drury R. Sherrod’s “The Jury Crisis: What’s Wrong With Jury Trials and How We Can Save Them,” is a recent and fascinating canary-in-the-coal-mine warning of the erosion of the jury trial in America.
Sherrod, a jury consultant and social psychologist, critiques the jury trial and explains from the perspective of a jury consultant what works and doesn’t work with juries. He then pivots in an important way (beginning in Chapter 11) to our loss — lawyers, litigants and society at large — caused by the vanishing jury trial. Each aspect of the assessment adds value to our understanding of this thing, the jury trial.
Sherrod frames the question in Chapter 7:
How do twelve strangers form themselves into a functioning group? How do they reveal their sympathies to each other? How do they seek to persuade each other to reach unanimous or near-unanimous verdict? How do they deal with intense pressures and conflicts within the group? How do they transform individual stories into a group story? Quite simply, how do they find a path to justice?
How indeed? But they do. Although Sherrod rolls in the mud to some degree with respect to public perception of runaway juries — i.e., by highlighting some of the more controversial trials of the modern era, think O.J. Simpson, the Bill Cosby sexual assault case, the hot McDonald’s cup of coffee, and most recently the Trayvon Martin “stand your ground” shooting case — he is most interesting when discussing his numerous interviews and surveys of mock juries. He concludes that when jurors aren’t given sufficient facts, or the facts are presented in a confusing, non-narrative manner, they tend to make up their own facts.
But, I don’t think juries make up facts to fill the gaps. At least in most cases. Rather, it seems to me that something else is going on. Jurors are instructed that while they should only consider evidence presented during the trial of the case, they are permitted to draw such reasonable inferences from the testimony and exhibits as they feel are justified in the light of common experience.
In other words, jurors may make deductions and reach conclusions which reason and common sense lead them to draw from the facts that have been established by the testimony and evidence in the case. This explains why jurors sometimes conclude things not explicitly mentioned by a witness, such as motive, intent or opportunity to commit a crime. Or at least in arriving at the point of fact-finding, they discuss possibilities. They are not making up facts but rather participating in the inference-drawing process.
In the main, juries seem to get it right most of the time. When I think how difficult it is for my family to reach unanimity over where we might go to eat on a given night, it amazes me that time and again, juries get it exactly right, often with the most exacting standards of proof. How they do that is a mystery that becomes more enigmatic with each attempt to study it.
“The Jury Crisis: What’s Wrong with Jury Trials and How We Can Save Them,” by Drury R. Sherrod. Rowman & Littlefield Publishers. 192 pages.
Sherrod humorously describes the horror trial attorneys experience when they observe mock deliberation. I have had the opportunity to observe videotaped jury deliberation (in an advocacy training context), and have frequently been confronted during trials with a jury question no one anticipated. Jurors say and think the darnedest things. And when these things happen, trial lawyers begin to think of other career options. Why suffer through this?
In addition to fact-finding and determining the credibility of witnesses, jurors are tasked with applying the law given to them by the court (usually at the end of the case, although one of Sherrrod’s reforms would be to do that at the beginning of trial) to the facts found by them to determine their verdict. And to do it unanimously. It’s a remarkable thing we ask of jurors. It is amazing that it works at all, much less as well as it does.
“How do they do this?” Sherrod repeatedly asks. Jurors ascertain the truth through storytelling. This is intuitive, Sherrod believes, and it is the task of the advocate to present evidence persuasively as a story and not as “out-of-order witness testimony or a list of points.” From voir dire through opening statement to the “one more time with gusto” closing argument, the advocate is telling a story, a theme.
I once heard a gifted trial attorney teach that every time he gives an opening statement, he mentally begins with, “once upon a time.” Telling the story well, telling it throughout examinations, and telling it again in closing is the art of advocacy. Proof that it is done well and works comes from the many interviews Sherrod (and others) have had with jurors where they describe a process in the deliberation room where individual jurors become the storytellers for one side or the other, often convincing other jurors of the righteousness of a side.
Sherrod’s book reads much like the story he advocates. It is written in a narrative style that explains how jurors fill in gaps with their own life experiences, and why that understanding should affect everything from jury selection to instruction. He tells us what story he is going to tell, tells it, and then summarizes each chapter at the end. It is quite readable, and one finds himself thinking about the stories told and conclusions drawn after the book is put down.
Sherrod’s story includes critiquing judges. He even calls them “storytellers in robes.” He certainly does not let them off the hook for bias or “cognitive illusion” — although where he sources “political ideology, ethnicity-related attitudes and experiences and cognitive shortcuts,” I tend to see differences in judicial philosophy. But his larger point that unchecked judges would not necessarily be better or more neutral fact-finders than citizen jurors is valid.
His book is in no way a paean to judges and juries. In fact, he finds much to criticize in the current jury practice. For example: the expense and unpredictability of trying cases, the difficult to understand jury instructions, and, sadly for me to read, juror dissatisfaction with their experience points to an institution in need of continuous improvement.
This has been a focus of efforts by our bench in the Western District of North Carolina. How do we do this better? Our attempts to improve our game with jury trials include (1) a jury evidence recording system that allows jurors to have digital access to evidence and, importantly, access to substantive jury instructions in the deliberation room; and (2) the design and implementation of a Jeffersonian revival model courtroom.
The primary feature of the Jeffersonian model is a jury box centered underneath the judge looking out to the well. The witness testifies to the jury (and judge) from the center of the well. The lawyers sit at tables to either side of the witness box neither having a positional advantage.
We believe the jury evidence recording system is an adaption of modern technology that positively affects the decision-making process, and is especially useful to juries in getting past an impasse. The Jeffersonian model constitutes a radical return to the way trials were once done (better) in Colonial times. The positioning speaks to the shared authority of judge and jury, the intimacy of interaction between witness and jury, and the egalitarian placement of counsel tables among other advantages. For us these innovations are brought about by a constant re-examining of the way we conduct trials.
This re-examination is why I like Sherrod’s book. From a unique perspective — as outsider looking in, and then deconstructing from within — he offers suggestions on ways to do jury trials better. Importantly, he then confronts the bigger question, the one we have been dealing with for some time: Should it be done at all? What is our loss if jury trials go away?
Attorney Katy Clements and I address this very same point in our law review article, “The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges.” There, we conclude in similar fashion to Sherrod that much is lost.
First, lawyers need trials to perfect their art, and society needs excellent trial lawyers. The more time that passes between trials, the less confident the lawyer becomes in trying cases, and settlement becomes the new normal — a way to avoid trial, not effectuate the best outcome. What is true about lawyers is also true about judges: The less opportunity the judge has to make evidentiary calls, the less proficient she becomes. With fewer trial opportunities, the number of judges who are skilled presiders over trials diminishes.
Second, citizen jurors play an important democratic function in binding us together.
And finally, the phenomenon represented by the knock on the door indicating a jury has reached a verdict is a marvelous thing. A party has had her day in court, has put the issue to a vote and may live with the outcome because of the chance to be heard. It is cathartic in a way many nontrial resolutions are not. This I understand to be Sherrod’s conclusion, and it resonates. The guild’s loss is society’s as well.
Much more exists between these pages. It would hold serve if just for the fascinating support Sherrod relied upon to make his case. When the opportunity arises, perhaps when the next case pleads out, judges and lawyers can look forward to reading Daniel Kahneman’s “Thinking, Fast and Slow,” D. Graham Burnett’s “A Trial by Jury” and Robert P. Burns’ “The Death of the American Trial,” to name a few works that Sherrod wraps his arms around. But, Sherrod’s “The Jury Crisis” should be included in any list of books trial advocates and those who love jury trials read.
Robert J. Conrad Jr. is a federal judge for the U.S. District Court for the Western District of North Carolina. He was nominated by President George W. Bush and joined the court in 2005. He served as chief judge from 2006 to 2013. He served as U.S. attorney for the Western District of North Carolina from 2001 to 2004.
The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio Media Inc. or any of its respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 86 George Washington L. Rev. 99, Honorable Robert J. Conrad, Jr & Katy Clements