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There was a time – not so long ago – when Americans believed in truth and the viability of American institutions. We can all see from the national political discourse – one cannot call it dialog because that assumes two sides listening to each other – that what was once held self-evident is now distrusted by wide swaths of our citizens. When truth is illusory and institutions distrusted there is a direct and negative impact upon the jury system upon which we so heavily rely to resolve disputes that cannot be settled.

We should all be worried. The jury system only works if jurors actually believe that truth exists. Juror’s only apply the law as instructed by judge’s if they actually trust the judge and the institution that is represented by a judge. Otherwise the jury system is a risk of devolving into a dystopian decision-making process based upon unfounded and unprincipled fact finding – unpredictable from jury to jury – unfair to litigants, whether individual people or corporations.

The impact of distrust in institutions, particularly the court system, science, and the media has had direct and harmful impact on the way juries function. There are simply too many myths and conspiracy theories held to be the truth by too many jurors for the vast majority of juries to actually make decisions based upon the evidence presented in cases as opposed to what jurors expect the “evidence” to be based upon misinformation generated in social media and the caricatures of lawyers, evidence and the court system that pervades television, theatre and movies.

Let me give you some practical examples from recent experience. After settling a case in the middle of trial, I talked with several jurors who were going to rule against my client, a business, that was a plaintiff in a lawsuit in a small county. The reason – they concluded without any evidence that no business transaction of the nature that we were claiming would ever have occurred without at least seven lawyers representing each side of the transaction. Mind you, Nike was formed and operated on a handshake. What’s worse – the county where the transaction occurred does not even have seven business lawyers – let alone seven per side.

This jury had all reached their contrary conclusion and incorrect decision prior to the end of the testimony of the second witness before a single lawyer involved in the transaction testified. To do so, the jury obviously must have the judge’s instruction not to talk about the case until after all of the evidence and instructions were given – from the conversation it was clear they were all talking about the case from the moment they were selected as jurors and knew what the case was about.

Fortunately, in that case, the case was settled in a manner that was favorable to my client. However, if the case had gone to the jury the result would have been a disaster for the client’s business and the local community.

The actions of two recent local juries have further illustrated the problem. The first jury I heard about by chance. I was playing golf with a lawyer and a friend of his who was an accountant. The accountant had just sat on a civil jury involving personal injury claims. The accident and injury were very significant. The case involved plaintiff who had his feet run over by a defendant who was cutting the defendant’s lawn with a ride on lawn mower. The jury found the driver of the lawn mower 80% responsible for the accident – not an unreasonable result. But when asked if the jury awarded a significant sum to the plaintiff, the accountant said, “that depends upon what you mean by a significant amount.” “We awarded the $425,000 in past medical expenses and the projected additional $25,000 in future medical expenses.” “We awarded a total of $50,000 in pain, suffering a disability.” An absurd and indeed obscenely low award for the extent of life-long injury sustained.

A second jury involved a criminal case where the result was a hung jury. The case was a felon in possession of a firearm case where the firearm was not recovered by the police. The jury deadlocked because many of the members of the jury thought the case was about a love story and a handful of jurors concluded that there was reasonable doubt because no gun was recovered with the defendant’s DNA on the gun. This hung jury resulted after presentation of evidence from more than six witnesses observing the defendant firing the handgun and a video of the defendant talking with his girlfriend at the jail pleading with her to “take the fall” for him on the firearm possession charge.

Jurors are not the only people at fault in this trend. Lawyers who use actors with no apparent injury to be say “I hired Lawyer Smith and he got me $300,000” are partially to blame. Those advertisements make jurors believe that clients can settle cases for large amounts of money without actually being hurt in any way that is visible. Judges who take outrageous positions or issue outrageous opinions are also to blame in part. The general tenor of discourse among society in general bear some of the blame. Politicians bear some of the blame.

What do you and your lawyer do about it? Carefully consider your dispute resolution options. Should you mediate or negotiate early? How will potential jurors react to the claims that are to be made? It is critical that your lawyer be experienced with juries and other dispute resolution processes. It is critical that you carefully analyze your dispute. The court and jury system are more dangerous to navigate today than at any other time in the more than thirty years I have practiced law. Up to date technology, experience and knowledge are not only the tools of the trade – but also, weapons to use in the dispute resolution war. One critical weapon – mediation – when approaching a mediated resolution make sure the mediator you choose is skilled in achieving resolution rather than simply imposing his or her will. How to find such a mediator is the subject of our next post