“We operate under a jury system in this country and, as much as we complain about it, we have to admit that we know of no better system (except possibly flipping a coin).”
– David Barry
In banking, compliance officers are taught to “know their customer.” In the courtroom, trial lawyers must “know their jury.”
Debunking A Widely-Held Myth About How Juries Make Decisions
As shocking as this might sound, no matter how many times a judge instructs a jury to view the evidence objectively and dispassionately, jurors do “not accumulate facts, one after another, in order to arrive at a conclusion.” They are not computers.
Nor do they deconstruct the jury instructions like a scribe deciphering the “Dead Sea Scrolls.” They do not probe the jury instructions with a fine tooth comb applying facts to the law in order to reach a result in the same way that a mathematician substitutes numbers for unknown variables in order to solve a quadratic equation.
In sum, they don’t use the precise linear thought of a rationale brain to arrive at a verdict (i.e., has the state satisfied all of the elements of the offense “beyond a reasonable doubt?”).
Instead, they care about right and wrong. Studies show that the number one fear that jurors have is convicting an innocent person. As paradoxical as this might sound, this cuts right to the heart of how perfectly imperfect we are as humans. Blaise Pascal said it best, “The heart has its reasons of which reason knows nothing.”
And Clarence Darrow extended this principle to the courtroom, “Jurymen seldom convict a person they like, or acquit one that they dislike. The main work of a trial lawyer is to make a jury like his client, or, at least, to feel sympathy for him; facts regarding the crime are relatively unimportant.”
I don’t know about you, but this flies in the face of what my law professors taught me in law school. My entire law school training was designed to sharpen the left side of my brain — that side of my brain responsible for logic, analysis, and reasoning. Emotion and creativity were analogous to the leftover parts of an Erector Set that were thrown out with the bathwater.
Who can forget the famous line from the movie, “The Paper Chase?” In the opening scene, Professor Kingsfield, played by John Houseman told the class, “You teach yourselves the law, but I train your minds. You come here with a skull full of mush; you leave thinking like a lawyer.”
Training lawyers to be objective non-feeling beings who apply facts to the law to reach a result has become and I dare say, remains a fundamental tenet of legal education. Our law school education has robbed us of the very qualities required to be good communicators: the ability to listen and the ability to feel.
We’ve been taught to hold back, smother, suppress, and destroy our feelings. Having been stripped of these attributes, we wallow in litigation anonymity like a bandaged mummy roaming aimlessly through a graveyard, completely numb to the pinch and unable to persuade. We become wallflowers.
All of this “feeling” and “emotional” gibberish might seem schmaltzy. But the feelings of defeat or of winning are not intellectual processes. Ask anyone who has been to court as a litigant and lost.
Ask the mother whose children have been taken from her or the ironworker who has been wrongfully fired from his job and cannot feed his three minor children whether being denied justice is an emotion.
Whenever I feel defeated or overwhelmed by a challenging case or a difficult client, I’m inspired by the famous quote of Pablo Picasso, “Art washes away from the soul the dust of everyday life.” When life beats down on us, it does so with enough vengeance to crush the soul. But as the legendary acting instructor, Stella Adler reminded her students, “Art reminds you that you have one.”