The Changing of Juries
As Jurors’ Attention Spans Narrow And TV Becomes Dominant, Brevity And Technology Are ‘Critical’
By MEGHAN S. LASKA
As recently as 10 years ago, most juries in Massachusetts were comprised largely of retirees and homemakers — and few professionals.
That’s because jurors in the Superior Court sat for sessions that could last more than a month, and exemptions from service were numerous.
“It was easier for professionals to get out of duty. The pay was $14 a day and it was a huge sacrifice to give up 30 days of work,” explains Massachusetts Jury Commissioner Frank R. Davis.
But in March 1988, Massachusetts became the first state in the nation to adopt a “one-day/one-trial” system, which permits jurors either to sit for one day or the length of one trial. The system also eliminated many of the old exemptions from jury duty.
As a result, cases today are tried before juries that are more likely to include younger professionals.
“We used to joke that a Suffolk jury was always comprised of six housewives, four retirees and some union workers,” says Maynard M. Kirpalani of Boston, who has been practicing for 20 years.
In addition to the broader selection of citizens now sitting as jurors, society’s faster pace, shorter attention spans and greater familiarity with technology have also had an impact.
“We are all victims of the TV age,” says Richard M. Zielinski of Boston. “People are used to getting information compartmentalized on the evening news in sound bites and they don’t leave that expectation at home when they take the oath as jurors.”
Zielinski and other trial lawyers have been forced to adapt.
“It’s critical to change our techniques to meet jurors’ expectations,” says Kirpalani. “The lawyer that is too set in his ways or stuck on a technique is running the risk of losing. The information age and changes in the media have altered the way we expect to receive information and lawyers have to use the technological tools to meet those expectations.”
Shorter Is Better
Zielinski’s credo at trial is blunt: “Keep it simple, stupid.”
He says that lawyers on both sides of the celebrated O.J. Simpson criminal case “were lunatics for thinking that they would keep a jury in a box for nine months. You need to get up, make your point and sit down.”
Experienced trial lawyers agree that the general rule of thumb is to keep everything succinct for jurors who may not have the time or patience to endure hour-long summations and examinations.
In the “old days,” trials were “grand theater,” and people actually traveled great distances to hear lengthy summations and watch a plot unfold, says Boston attorney Steven H. Schafer, president of the Massachusetts Academy of Trial Attorneys.
Now, the average juror is used to watching a 30-minute sitcom that has 10 minutes of commercials, says Zielinski, who notes that most video depositions don’t even get through the qualifications of the witness within 20 minutes, much less the actual testimony.
“Almost every video deposition I’ve seen is way too long,” says Zielinski, who stresses that attorneys have to make “yeoman efforts” to make them as short as possible.
Kirpalani recalls a case in which his cocounsel showed a video deposition to the jury that lasted five hours.
“I was falling asleep and I don’t think the jurors could have caught much of it. They probably listened to the first 10 minutes, which was just the guy’s credentials, and then most of the testimony was lost on them,” he says.
Since jurors aren’t usually told how long examinations will last, they sit with increasing “shock and horror” when they see the lawyer is still asking questions after a prolonged period, says Kirpalani.
“You’re asking a lot of people to sit in one chair and take in a lot of complex information and you have to take that into account in your strategy,” says Lisa C. Wood of Boston, chairwoman of the Boston Bar Association Litigation Section.
Whether examinations are live or on video, trial attorneys stress that they need to be kept short.
“Any good examination ought to be conducted in 20 to 30 minutes,” says Kirpalani. “I am a big fan of saying if you don’t have anything to say, sit down and shut up.”
Trial attorneys also suggest breaking the trial into smaller, more “digestible” pieces.
Zielinski recommends asking the court for pre-trial instructions to give jurors a frame of reference for the evidence they will hear.
He also advises asking the judge to hand out copies of the jury instructions at the end of the case because, like examinations, verbal jury charges can outlast people’s attention spans.
Summarizing evidence for the jury during trial as well as letting jurors question witnesses are also effective techniques when allowed by the court, Zielinski says.
“Anything that gives the jury information in smaller, more easily remembered and understandable bites is good for the jury,” he notes.
Bringing Stories To Life
While experienced trial attorneys say that shorter is better as a trial technique, they also stress the importance of using technology in presenting evidence to grab the jury’s attention.
Popular television shows like “L.A. Law” and “Law & Order” have led jurors to expect an interesting trial when they arrive at the courthouse, attorneys say.
Boston lawyer Natasha C. Lisman, vice chairwoman of the BBA’s Litigation Section, points out that trial techniques incorporating technology help attorneys in the art of storytelling, which is at the core of conveying a dynamic plot to the jury.
“What really counts at trial is what happens between the opening and closing arguments and if all you have is talking heads, it doesn’t become real. The more you can supplement with technology to make the story come alive, the easier you are making the jurors’ tasks,” she explains.
Wood notes that jurors often groan when they see lawyers dragging in piles of documents.
To avoid this problem, her tool of choice is the CD-ROM, which allows her to have a “paperless trial” and present evidence at the click of a mouse.
In business litigation, Wood says, “using technology can help you tell your story in a boiled down way and get rid of complications.”
Learning how to grab the jury’s attention and keep it “is the difference between winning or losing a case,” says Douglas K. Sheff of Boston.He says that, while attorneys don’t need to go to extremes with technology, it is a highly effective way to present demonstrative evidence to today’s jury.
“I can’t overemphasize the degree to which the attention span problem is alleviated by animating a case with visual aids,” he says.
Chris A. Milne of Dover says he recently had this point brought home in a lead poisoning case.
Milne hired a PBS producer to create a three-minute animated video depicting how lead affects the body.
“Instead of the expert giving testimony alone, the jury could see the video alongside the testimony,” Milne recalls. “Since half of what people say on the stand isn’t really listened to, using a good demonstrative aid is a positive thing.”
And trial lawyers are even borrowing strategies for using technology from TV news.
Zielinski recently discovered “call-out boxes,” which are used on television to highlight key information within a document. Half of a call-out box portrays a full document and the other half shows enlarged portions of the document.
“The jury is truly riveted on the parts of the document you want them to focus on, but they can see enough of the full document that they don’t think you are cheating,” he says.
Of course, not all cases merit video animation and other expensive forms of technology presentations.Indeed, some lawyers still use “old-fashioned” overhead projectors.
“I usually bring one to court to create impromptu evidence,” says Kirpalani, noting that it’s more constructive than handing out copies of documents to jurors.
“If the relevant page is on a screen behind you, you can keep jurors’ attention and control what they see, rather than having them flipping through other pages while you’re talking,” he says.
Sheff agrees that technology doesn’t have to cost lawyers a fortune in order to be effective.
“The importance is the frequency of showing demonstrative evidence and using it at critical points at trial,” he says. “It’s not so much how expensive or modern or high-tech it is.”
Logistical Planning
While experts say that trial lawyers must keep up with the changing times, they also note that lawyers have to use technology carefully.
“Trying a case is a logistical planning exercise in itself,” says Kirpalani.
Attorneys should become very familiar with their courtroom prior to trial so they can choreograph their strategy — a practice that may become more of a hurdle with the new federal courthouse in Boston and the soon-to-open state courthouse on New Chardon Street downtown.
“You don’t want to deal with blown light bulbs or a screen that blocks the judge’s or opposing counsel’s view,” Kirpalani says, adding that attorneys need to determine how many monitors they will need and where the working electrical outlets are located.
Boston attorney Warren F. Fitzgerald, president-elect of the MATA, cautions that attorneys should always be prepared to bring their own equipment to court.
“Courts are generally not set up for technology compared to other jurisdictions,” Fitzgerald says. “Don’t count on there being equipment at the courthouse, and if they have it, you can be sure that it will be malfunctioning or unavailable when you need it.”
And dragging your own equipment to court is no picnic either.
“It’s a pain to bring in our own equipment, and you always need to have backup equipment with you or quickly attainable,” says Schafer.
Fitzgerald notes that many jurors are more up to speed with technology than the lawyers — so it is not wise to try to impress them.
“It’s tough to keep up with public expectations nowadays,” he says. “Most 8-year-olds wouldn’t be satisfied because Nintendo runs better than the demonstrations we use.”
Cost can also be a discouraging factor in the use of technology.
Schafer notes that the equipment can run several thousand dollars, but he adds that the investment can reduce costs in the long-run.
Fitzgerald says that, in many instances, it has become cheaper to use technology than it was 10 years ago.
“Various types of demonstrative evidence from photography to computer-generated presentations range from modest to very expensive, so it’s always an issue to decide what is appropriate for particular cases,” Fitzgerald notes.
Distractions can also be a concern when using technology.
Lisman says she’s “experienced real-time transcription at a deposition and … found it disconcerting because both my questions and the answers were appearing on my laptop computer as I questioned the witness.”
Since it’s very important to have eye-contact with witnesses, lawyers who are too mindful of the outline on a computer run the risk of not seeing a witness squirm or missing a follow-up question, she says.
“If you are too distracted by gizmos, you might forget how to communicate,” Lisman says.
But overall, lawyers agree that using technology is an effective trial strategy with today’s jury.
“It’s critical to change techniques to meet jurors’ expectations — you need to adapt to the audience,” says Kirpalani.
