A Peek into the Jury Room

Midyear Meeting Highlights

Study shows how jurors use questions, judge lawyers

March 2007 Issue
By Terry Carter

When juries go behind closed doors to decide the fates of litigants, the lawyers begin deliberating their own big question: What are the jurors saying and doing in there? Lawyers at the ABA Midyear Meeting in Miami got a chance to find out with a peek into the deliberations of 50 civil juries in Arizona. But there was one hitch. The findings came via researchers who, to win approval for the project, agreed that no one else ever will see the videotapes.

That said, the research offers a trove of gold.

At a panel discussion, Shari S. Diamond, a senior research fellow at the American Bar Foundation, ticked off some misconceptions about jurors: They make up their minds before deliberations; they take immediate votes; the majority browbeats the others to come around.

“But actual deliberations were far more complicated,” Diamond said. Her study, known as the Arizona Filming Project, focused mostly on automobile injury cases. Diamond said the project shed light on juror questions, allowed in Arizona but still considered controversial.

During the 50 trials, jurors asked 829 questions. The longer a witness testified, the more questions jurors asked. “Half the questions are aimed at cross checking, which goes back to the issue of ‘who do I trust, how can I figure out who’s helping me, who’s telling me the truth, how can I figure out the stories I’ve been given?’ ” Diamond said. For example, in one auto accident trial a juror asked whether one of the cars was going too slow. Another asked if a car had an air bag, which indicated an effort to determine the car’s speed at the time of the crash.

And despite what many lawyers think, Diamond said, juries do not start out their deliberations either pro plaintiff or pro defense. But they do react to the lawyers. “Don’t ever let the jurors think that you’re talking down to them,” she said. Former ABA President Robert J. Grey Jr. told the group that Diamond’s research is aimed at making the system better for juries. During his presidency, Grey launched the American Jury Project, which developed 19 aspirational principles for jury service. They would allow jurors to submit written questions for witnesses in civil trials, to take notes, and to discuss the case during trial recesses.

Patricia Refo, a Phoenix lawyer who chaired the jury project, said jurors should be allowed to talk about cases as trials develop, now permitted only in Arizona and Indiana. Barring discussions until the end is “just not the way people function.”