I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the four Principles studied in Phase Two,* this post looks at the additional three Principles considered only during Phase One: juror questionnaires, deliberation guidance, and trial limits.
The Phase One study showed strong value in having potential jurors answer questionnaires prepared by the court and counsel before voir dire. It streamlined the voir dire process, preserving judicial resources and benefiting jurors who are not comfortable with public speaking. The Commission recommended using questionnaires. For much more on questionnaires and a great library of them, check out Anne Reed’s Deliberations blog – click here for Reed’s questionnaire library.
The Phase One analysis of adding deliberation guidance instructions was inconclusive. Judges in sixteen trials used the following instructions regarding picking a foreperson and deliberating:
A. Jury Instruction on the Role of the Presiding Juror:
You are free to deliberate in any way you decide or to select whomever you like as a foreperson. However, I am going to provide some general suggestions on the process to help you get started. When thinking about who should be foreperson, you may want to consider the role that the foreperson usually plays. The foreperson serving as the chairperson during the deliberations should ensure a complete discussion by all jurors who desire to speak before any vote. Each juror should have an opportunity to be heard on every issue and should be encouraged to participate. The foreperson should help facilitate the discussion and make sure everyone has a chance to say what they want to say.
Several stories and updates that are worth a mention, but do not warrant a separate post:
- I was going to write a post explaining new Federal Rule of Evidence 502, but Beck & Herrmann at Drug & Device Law beat me to it and did an excellent job (actually, they did not, but their colleague David B. Alden of Jones Day did) — click here to read the post. Every litigator should read FRE 502 for themselves and then read the Drug & Device Law post or some other guide. It is a significant rule, even though it codifies much of what was already the standard practice.
- Anne Reed at Deliberations provides a series of links to the most recent edition of The Jury Expert — click here for Reed’s post. If you do not already subscribe to The Jury Expert, do it now. This is a fabulous publication. My favorite article is by Oklahoma State’s Edward Burkley and Darshon Anderson, discussing translating the science of persuasion into the courtroom. Anyone who makes it their business to persuade judges, juries, colleagues or even their spouse should read this article. Much of the article will not be new to anyone who studies the art of persuasion. But at a minimum it is an excellent distilling of important persuasion techniques and everyone will learn or rethink a few things.
- Patent Reform is back, or at least Minority Whip Senator Kyl (R-AR) has introduced a new patent reform bill. It is hard to imagine there is much traction in the midst of a presidential election and all of the economic unrest swirling around Washington. But you can read more about the bill at Patent Docs and the 271 Patent Blog.
Here are several posts related to IP litigation that are worth a read:
- Anne Reed at Deliberations has a fascinating post discussing a study about the differences between city and suburban or rural juries — click here to read it. The study is focused on criminal cases, but it has value for civil juries as well. It is no surprise to anyone involved in trials across the country that city jurors act differently than suburban or rural jurors. But the real message of Reed’s post is that you have to be careful to draw overly strong conclusions about one factor (juror’s home addresses) from a study of a massive, complex system like a trial. The outcomes are also dependent upon the sophistication of the court as to the subject matter and type of law of the case, the volume of the court’s docket, etc. And there might be more important ways to classify jurors. For example, relative wealth and level of education may be more important factors than where they live. But Reed points out that the real value of the study for lawyers, consultants and litigants is that it makes us think about how juries are influenced and challenges our preconceived notions. Reed challenges us to Reed the study and use it as a springboard, instead of as an answer.
- At his The Prior Art blog, Joe Mullin has an update on Scott Harris and his patent portfolio, after his settlement with his former firm, Fish & Richardson — click here for the post. Harris and Memory Control Enterprise recently filed a patent infringement suit in the Northern District involving GPS navigation technology. I will post about those cases as opinions and orders are issued.
- Here is a useful white paper on taking cross-cultural depositions from the All Language Alliance. Hat tip to Evan Schaeffer at his Illinois Trial Practice Weblog for the link in a post about depositions using interpreters.