Jury Perceptions on Advocacy: A Case StudyAuthor(s): Arthur D. AustinSource: Litigation, Vol. 8, No. 4 (Summer 1982), pp. 15-17, 68Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758724 .

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Jury Perceptions on Advocacy:

A Case Study

by Arthur D. Austin A trial lawyer's livelihood depends on his ability to per? suade juries. Success comes from preparation, advocacy skills? and luck. Lawyers have formed their assumptions on how best to persuade juries based on their courtroom

experience. A recent jury survey reinforces some of those

assumptions and raises doubts about others. It certainly confirms the vicissitudes of jury psychology.

In 1975, the City of Cleveland sued Cleveland Electric

Illuminating Company (CEI) under the Sherman Act for

monopolizing electric power and, in the process, inflicting approximately $50 million in damages on the city's Munic?

ipal Electric & Power System (Muny). The complaint alleged that CEI abused its monopoly in electrical power by: refusing to sell power to Muny; refusing to allow

Muny to use CEI's transmission lines in order to buy cheap power; and using "predatory" tactics to induce Muny's customers to convert to CEI.

In 1980, the first jury "hung" at 5-1 favoring the city. The case was tried again before a different jury the next

year, and the second jury voted 6-0 for CEI. The case is

presently on appeal to the Court of Appeals for the Sixth Circuit.

I attended both trials regularly and interviewed most of the jurors and alternates. While the primary purpose of the survey was to provide data for a study of how jurors comprehend complex antitrust litigation, the interviews revealed many interesting jury perceptions on advocacy techniques.

The survey confirmed the importance of matching the

prejudices and philosophical tendencies of jurors to the

strategy of the litigation game plan. The first jury (Jury I) was high school educated, aver?

aged 50 years old, and was composed of a temporary secre?

tary, a postal worker, a retired welder, a fish boner, and two housewives. It was a "blue collar" jury that viewed

"management" with hostility. The jurors were suspicious of "big business," which they identified with "manage

The author is Edgar A. Hahn Professor of Jurisprudence at Case Western Reserve School of Law in Cleveland, Ohio.

ment." Since Muny is publicly owned and intended to pro? vide power at low rates, it was not viewed as "big business." On the other hand, the investor-owned CEI, whose sole objective was profitmaking, was "big business," Furthermore, Jury I believed that CEI had a "duty" to cooperate, not compete, with the city's system. Thus, the jury in the first trial had a built-in bias perfectly suited to the plaintiffs David v. Goliath theme.

Jury I was intimidated by the majesty and authority of the courtroom. The jurors showed a general naivete about the legal system. Indeed, one juror assumed that if the

judge did not dismiss the allegations, they must be true! Another edge to the plaintiff.

The jury in the second trial (Jury II) was younger, aver?

aging around 40 years old, also high school educated, and was composed of an auto assembly line supervisor, a

logistics coordinator, a customer affairs adjuster, a

manager of a department in a retail store, a nursing home

attendant, and a housewife. The second jury had a man?

agement-oriented perspective that favored vigorous com?

petition and approved corporate profit-seeking.

Alleged Mismanagement Not surprisingly, Jury II evaluated conduct alleged to be

anticompetitive, such as refusal to deal, with a manage? ment bias. Jury II was particularly negative to the city's claims that CEI had stolen its customers by providing free

wiring. The jury saw this as a rational, although aggres? sive, way of responding to competition. Undoubtedly drawing from their supervisory experiences, Jury II was

antagonistic towards the alleged mismanagement by Muny employees.

Consistent with its lack of experience in management skills, Jury I failed to resolve personality problems that

ultimately destroyed its deliberations. After rejecting the eventual holdout's plea to be elected foreman, the jury deliberated in confusion. Surprised that their function was not to vote "guilty or innocent," they had difficulty in

coping with five interrogatories. The foreman and holdout

disagreed over procedure. The foreman initiated delibera

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tion by reading aloud Question One, passing it around, and asking for a decision from each juror. She wanted each

juror to initial each question to evidence irrevocability. The holdout wanted a general discussion and the option of

changing her mind. They argued over the holdout's re?

quest to "read ahead" to Questions Four and Five. An im?

passe over procedure blossomed into a bitter personality conflict and a mistrial.

Experienced in conflict resolution and working with a group acquainted with management skills, the Jury II foreman started deliberation by asking each juror to ex?

press his general inclinations on the case and specific views on the evidence. After the discussion revealed the firm consensus that the city had a weak case, the foreman turned to the questions. Within six hours they agreed that CEI had not monopolized.

Both juries were bored with what they considered

tedious, often puzzling, and repetitious testimony. Trial I consumed 30 trial days, lasting over two months, while Trial II was twice as long. As the testimony droned on, the

personalities and demeanor of the participants, rather than the substance of the case, became the lightning rods for attention. All of the jurors retained vivid memories of the lawyers. Their advocacy style was a frequent subject of conversation during lunch breaks since it was not included in the judge's admonition not to discuss the case. Lawyer critique served as a safe emotional outlet.

Daydreaming, grimacing at testimony, glaring at rivals, every movement by the lawyers was observed and digested by the jurors. Opposing counsel gave the jurors a choice of

styles. The plaintiffs four lawyers were low-key advocates who divided the work load fairly evenly and were led by a

distinguished-looking and stylishly dressed "first chair." Defendant's "first chair," a small, wiry man of 69 years, played the country lawyer. He was an aggressive examiner who handled most of the witnesses. A young partner wear?

ing the conventional pinstriped suit was the only other

lawyer at the defense table.

Jury I favored the plaintiff's advocacy style, calling it

"professional," "sincere," and "organized." They selected the plaintiff's "first chair" as the "best" lawyer. Because of his vigorous style, the jury was hostile to the defendant's "first chair," accusing him of being "in? tolerant" and "too hard" on the witnesses. The jurors seemed to feel that the belligerence they associated with the defense violated the dignity of the court.

Jury II relished the confrontations between the defen? dant's "first chair" and the witnesses. When he started towards the podium to cross-examine, the jury's anticipa? tion was obvious. Although the "first chair" handled most of the witnesses, Jury II perceived the two defense lawyers as a team, and noted with approval the support through notes, comments, and gestures, that the "second chair" contributed to his colleague's performance. To them, the defense was efficiently managed.

Conversely, Jury II disapproved of the plaintiff's divi? sion of labor, interpreting it as reflecting lack of teamwork and good management. To Jury II, solo advocacy in? dicated that the city lawyers were individualists who did not grasp the "big picture." Individualism became a source of amusement when several jurors detected a city lawyer writing a letter to his mother while a colleague was

conducting an examination. Since lawyer critique was a favorite pastime, all the jurors knew of the letter writing in? cident.

Both juries expressed disappointment with the lawyers' overall performance. Conditioned by the precision of television drama, they disapproved of the seemingly ex? cessive flow of exhibits, delays in document retrieval, and

lengthy bench conferences. The bench conferences, where the objections were discussed and resolved by the court, were a particular irritant since they interrupted the jurors' concentration. As one juror complained, "You would sit there half the darn morning and look at the hind end of those attorneys. It just got boring as hell." More disturbing was the undercurrent of distrust of the

judicial system that ran through the jurors. "I never did feel that we knew everything anyway," a juror complained. "I just felt, well, you know here's one very shrewd lawyer taking one thing out of context and presenting it in their

way and it sounds very reasonable and logical, and here is another one taking the same . . . thing out of context and

presenting it with another view. ..."

Generally Skeptical Expert witnesses are the backbone of antitrust litigation

and Cleveland v. CEI was no exception. Both sides pro? duced experts on electrical technology, finances, and economics. The jurors on both juries generally were skep? tical of the experts. One of the most frequent complaints was that the expert witnesses "talked down" to the jury. Describing the city's principal economist, a member of

Jury II complained, "He is a teacher and ... is used to

lecturing. We are not his students. I thought he was up there on an ego trip most of the time."

The experts' recitation of their academic and profes? sional accomplishments was viewed as needless and tasteless self-praise. Moreover, those experts who had a varied employment background were condemned for not

being able to keep a job: "I see [him] changing jobs every three or four years. ... To me [that] is not a reliable per? son. He can't keep a job."

Perhaps the most interesting jury perception of the ex

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perts was Jury IFs shock and resentment at hearing an im?

portant city witness acknowledge that he was being paid $50 per hour. The suspicion grew among the jurors that he was prolonging his cross-examination to increase his fee. The foreman observed, "When he came up to get his cross

examination, he avoided everything. We couldn't figure out if he was getting paid by the hour or by the sentence."

However, it was not expert witnesses who produced the most heated reaction from Jury II. The mayor of Cleveland, who also testified briefly in Trial I, took the stand during the second trial to describe Muny's future.

Jury II interpreted his appearance as an obvious ploy to ex?

ploit his political popularity and influence their judgment. They were incensed when he stated that he intended to use the funds from the forthcoming judgment in the CEI ac? tion to rehabilitate Muny. The mayor was, in a typical juror's description, "cocky ... he just made a fool of himself."

The extent of the jurors' retention of testimony de?

pended on the length of testimony, the witnesses' ability to handle cross-examination, and personality differentia? tion. The overall retention level for Jury I was low, with several jurors acknowledging that much of the testimony had been forgotten when deliberation started. Conversely, Jury II expressed confidence in their "good" retention. Nevertheless, Jury II complained of "repetitious and tedious" testimony, which they associated with the plain? tiffs witnesses.

Many lawyers think that after a mistrial, the tactical and psychological edge shifts to the defense. The defen?

dants, according to an experienced lawyer, "learn in the first trial how you put your case together, the tack you take, and which points are primary points and which are

giveaways."

Having come razor-close to victory, the plaintiffs lawyers were not about to alter a well-received script. They did some tinkering and fine-tuning, but nothing drastic.

With one vote keeping them from a fall into the black hole of defeat, the defense lawyers had little alternative but to revise their strategy. They made two advocacy changes: they elevated the intensity of cross-examination and in? creased the frequency of evidentiary objections.

The city sprayed the jury with a cluster of allegations possession of excessive market power, predatory conduct such as refusals to deal, and assorted "dirty tricks." In contrast, the defense was thematic?the focus was on

mismanagement as the sole source of Muny's agony. The defendant thereby exploited a theme that triggered a

responsive chord in Jury II. Hostile to political in? terference in the market through public ownership and with a management bias, Jury II embraced the mis?

management theme that unfolded on cross-examination.

Jury II was enthralled by the defendant's pugnacious collision with the city's witnesses. There was a consensus

among the jurors that the slashing cross-examination of a

key witness flushed out damaging statements on misman?

agement that fatally infected the city's case. The jury's dis? dain is reflected in such comments as: "After they were

through with him, I could see why Muny went downhill." "He was damaging. I think he was very evasive." An alter? nate who favored the city acknowledged, "He struck me as a wheeler-dealer . . . a carpet bagger. ..."

Objection strategy is a source of disagreement among trial lawyers. Some are hesitant to enter frequent or strenuous objections for fear of giving the impression that

they are laying down a smokescreen for a weak case. The defense followed this soft objection strategy in the first trial, but went after the plaintiffs at every opportunity in the retrial, constantly objecting to leading questions and the failure to lay a proper foundation.

Negative View

Throughout the retrial, the defense received favorable

rulings on its objections. The jury overheard rulings made at bench conferences or could surmise the rulings and formed a negative view of the city's advocacy skills. In a

typical comment, a juror said, "He [plaintiffs lawyer] should know how to lay a proper foundation. After a while I would say, 'lay a proper foundation,' before it was ever

objected to. . . ."The foreman suggested getting T-shirts with "lay a proper foundation" printed on the front.

One can only conjecture on the psychological effects of a mistrial after years of preparation and weeks of trial. All the lawyers on both sides appeared confident of victory and thus felt a tremendous emotional letdown at the in? conclusive verdict. One advantage the defense had in over?

coming the trauma of defeat was the stimulation of revis?

ing strategy and getting a second chance. Conversely, the

plaintiffs were condemned to the boredom of repetition. Psychological scars may have adversely affected the

stamina level of the city's lawyers, which appeared to drain away as the second trial progressed. The jury detected this, prompting one juror to say, "They looked like they were

going downhill. They looked their best in the beginning and just kind of went down. Whereas, they [the defense] were just getting started."

It is the effective use of advocacy skills that creates and sustains momentum. Control of the tempo of the trial comes from success in handling witnesses, strategic objec? tions to disrupt damaging testimony, and intangibles such as poise or flair. Control of tempo is a critical factor injury persuasion.

This survey revealed that in complicated litigation, the

jury becomes frustrated with tedious and boring testimony that they deem incomprehensible. Moreover, jury instruc? tions make little or no contribution to deliberation, leaving jurors to rely on common sense. As one member of Jury II advised her colleagues, "We're just common people, so I

said, 'use common sense in making your decision.'" "Common sense" is orchestrated by the advocate with

momentum. Jury I perceived the plaintiffs as controlling the tempo of that trial. In the second trial, the defendants

got momentum in an early cross-examination and re? tained it by banging away at a single theme?mismanage? ment as the proximate cause of the city system's failure.

There are some final ironies. In the retrial, one of the alternate jurors who indicated she would have voted for the

city almost got a chance to hang the jury when one of the

regular jurors seriously considered getting excused before deliberation started. This may have triggered the unique arrangement adopted by Judge Krupansky to prevent another mistrial. If the regular jury of six became dead?

locked, he was going to give the case to the alternate jury (Please turn to page 68)

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states, like bailments in South Carolina, turn to the national

organization of lawyers, the ABA.

They say, "set up national standards for us to follow. Get the state and federal courts to agree. Enlist your specialist sections, like the Section on

Litigation, to formulate requirements for advanced degrees and certificates for us to award, and for which we can

charge tuition." In my dream it all begins that way,

and ends with the law schools ade?

quately training our young people for the profession, and making them? selves more economically indepen? dent while doing it.

Well, even so, all our problems would still not be solved. We would still face the fact that it costs a lot more in time or effort for a lawyer to deliver adequate legal service than for a doctor to deliver appropriate medi? cal help. For example, you have to be

pretty sick indeed before you can take

up more than four or five total hours of your doctor's time, and even a very difficult operation does not last more than six or eight hours. Even adding pre- and post-operative time, there still is no comparison to what every trial lawyer now invests in just about any litigated case. And we are never

going to solve fully the problem of

adequacy in court, until we deal with the realities of the economics of litiga? tion.

Why should it routinely cost more to litigate a case in order to vindi? cate rights than those rights are eco?

nomically worth? If a mover did $2,000 worth of damage to your fur? niture, a litigated suit might well cost

you more than you can possibly recover. Counsel fees ought to be

routinely recoverable.

Why should medical expenses be treated as a calamity, so that once

they exceed 3 percent of adjusted gross income they are deductible, while personal legal expenses, which are more calamitous, must be swal? lowed whole? If a stock broker com?

mits fraud in business and is indicted for it, his legal expenses may be deductible, even if he is convicted. But, if the broker is charged with kill?

ing his wife, his legal expenses cannot be deducted?even if he is acquitted! Yet, all his medical expenses are allowable. Why? Because we, as a

society, have made the policy judg? ment that medical expenses can be so

crushing that an individual should be

permitted to spread a portion of the costs back through the society as a whole.

Legal costs are at least as devas?

tating. Imagine, for example, any of us having to come up with $50,000 or

$100,000 nonrecoverable dollars if

falsely accused of crime. The in? dividual's ability to afford to vin? dicate his legal rights is no less impor? tant to a just society than ensuring the

provision of the potpourri of medical services now routinely deductible.

Combat Hypochondria Oh, I know a cry will go up: "If you

make all legal fees deductible you will encourage frivolous suits." Well, at best, these are still 50c dollars we are talking about, not a free ride. Anyway, that objection makes as much sense as a proposal to eliminate all medical deductions in order to combat hypochondria.

The fact is that lack of training is

only one part, perhaps not even the

largest, of an overall problem of in?

adequacy in the courtroom. The sad truth is that all too often no one? neither lawyer nor client?can afford what good representation costs. We must, therefore, dream of more than

just improving legal education.

Our procedures have become too

heavy; the system threatens to break under its own weight. We must dream of ways to streamline procedure to do

justice more quickly and more cheap? ly, so that courts cannot be used by plaintiffs to extract unmerited nui? sance settlements from wealthy de? fendants, and wealthy defendants cannot use procedural devices intend? ed for fairness to suffocate meri? torious claims.

Legal costs are so formidable that

they should routinely be shifted?or at least apportioned?between the

parties, according to the merits of the

controversy. We must dream of ways to do this without creating a separate litigation monster, where fee disputes

move to center ring and the rest be? comes the side show.

We must come to realize that for an individual citizen litigation, all litiga? tion, is a financial calamity?every bit

as drastic and worthy of tax relief as medical calamities. We must dream of ways of shifting and spreading costs so that our people can afford to pay for our services, and we can afford to

provide the right service in the right kind of way.

But all of this may be too much at one time. After all, we cannot squeeze too much into one dream. I suppose, then, for the moment, it may have to be good enough to start at the begin? ning, with legal education, and let the rest be dreams for another day.

Jury

Perceptions

(Continued from page 17) for resolution. It is also interesting to note that if the total votes of both

juries, including the professed views of alternates, are compiled, the result is 12 for CEI, 11 for the city. (Trial I, 9-2 favoring the city; Trial II, 10-2 for CEI).

Regardless of skillful advocacy, the

lawyer always competes with the

capricious temperament of luck. Who could have anticipated several members of Jury II sitting in the

hallway during a break watching the

city's chief economic expert witness as he faced a coat rack. This is how one of the jurors described the scene:

Dr. _is standing there looking at them coat

hangers and he hit the first one and the first one hit the second and the third and the fourth, you know, chain reaction and ... he would wait for a while and then he would do it

again . . . bing, bing, bing. Then he did it again. And, he was just sitting there staring at them coat racks bump into each other and we're looking at him. ... I couldn't believe it, I

said, my gosh, I wonder how much they are paying this guy for

playing with all the coat racks. . . . It was strange, it was

really strange . . . maybe he was

trying to think of economics.

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