Monthly Archives: May 2011

“12 Angry Men” In Real Life

Sometimes movies have good lessons.  “12 Angry Men” had a few.  Below is a short snippet from a 9th Circuit Court of Appeals order.  I will also provide the link to the full opinion but wanted to briefly mention a couple of lessons from the below-referenced case:


REINHARDT, Circuit Judge:

Consider two scenes:

Scene One

Juror #8: I just want to talk.

Juror #7: Well, what’s there to talk about? Eleven men in here think he’s guilty. No one had to think twice about it except you.

Juror #10: I want to ask you something: do you believe his story?

Juror #8: I don’t know whether I believe it or not — maybe I don’t.

Juror #7: So how come you vote not guilty?

Juror #8: Well, there were eleven votes for guilty. It’s not easy to raise my hand and send a boy off to die without talking about it first. . . . We’re talking about somebody’s life here. We can’t decide in five minutes. Supposin’ we’re wrong.

Scene Two

Juror #6: I said . . . this is a very important case and we should be very convinced that if the defendant is found guilty that it is beyond a reasonable doubt. . . .

Foreman: We have spent some time now trying to understand the reasonable basis for his doubt, and I personally did not yet understand it . . . . I would say that two-thirds of the jurors have tried to persuade— have actively tried to persuade . . . him that his current view is incorrect.

Juror #4: Well, I guess he believes from the evidence that he’s seen that there hasn’t been sufficient proof. . .

Juror #5: I think the question may have been raised: “Do you have a political agenda?” I think [it] might have been in the heat of the argument, because it does get heated back and forth from a bunch of different people. It may have been said.

Juror #9: Well, he said this is a serious thing, and I don’t really feel that there is enough cause for — or something to that effect. . . What he said was, “I wouldn’t want to take anyone’s freedom away, unless,” you know, “I was sure that certain things took place.” . . . .

The first passage above is dialogue from the classic Academy Award-winning 1957 film, Twelve Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial should be acquitted. The second excerpt comes from the transcript of proceedings during the petitioner’s murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was taking a different view from the others. In the end, the trial court dismissed that juror on the ground that he was “biased” against the prosecution. With an alternate juror in place, the jury returned a guilty verdict. Twelve Angry Men made for great drama because it violated the sanctity of the jury’s secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction. We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed. Under the precedent that existed when petitioner’s conviction became final (and exists today as well), the trial court’s actions violated the petitioner’s Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment. We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ.

[Here is a link to the full opinion:]

I have two comments, one relating to the opinion, and one relating to a comment of a quoted juror.  Regarding the opinion itself, I give the judge credit for understanding that holdout jurors are a fundamental part of our legal system.  Expecting that all jurors will come to a consensus on every case is not only unreasonable but it also implies that all minds think alike – which is the very antithesis to the purpose of having a cross-section of the community. 

Secondly, notice that the juror says, “I wouldn’t want to take anyone’s freedoms away unless I was sure that certain things took place.” [Emphasis added]  This comment is common in both civil and criminal lawsuits when plaintiff’s attorneys or criminal defense attorneys are not clear throughout trial about the burden of proof.  When you try cases, make sure that jurors understand that they do not have to be 100% sure of anything.  Ask in jury selection how sure they would have to be to make a decision in this case – 80%? 70%?  What is their line.  In civil cases, you can get challenges for cause based upon these answers.  Make sure you reiterate the burden in opening, through witnesses, and in closing.  Jurors cannot think backwards, so if you only hit on the burden once in voir dire/opening, they forget it by the time you mention it again in closing and by that time, they have analyzed all of the trial evidence through a lens of “am I sure?”  Particularly in civil cases, preponderance is one of your best weapons.  Don’t forget to use it!

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Which Type of Focus Group Should You Run?

There are a multitude of ways to run focus groups depending on what you are trying to test.  The most common focus groups are:

(1) Concept Focus Group

(2) Deliberation Focus Group

(3) Testing Exhibits

There is no one setup that is better than the others.  They all serve individual purposes.  Let’s go through them one at a time:

Concept Focus Groups:  These are most similar to what you would imagine for a focus group to test a product.  The moderator stays with the group of jurors the entire time, feeding them information in small bits from the most general information to the more specifics of the case.  As the discussion progresses, the moderator probes jurors for their reactions.  This allows you to see how juror opinions shift when a new piece of evidence is presented.  It will tell you what is missing, what is important, and where jurors are confused.  What it will not tell you is how jurors process the case as a whole when presented in script format as it would be in trial.  It does not tell you how jurors would process the information individually before deliberating as a group, nor does it give any indication of how deliberations would turn out, who would be leaders in the discussions, and how jurors work together as a group.  This type of focus group is usually best suited for earlier on in the development of the case before discovery deadlines pass to test general opinions and find out what more information or experts jurors are needing.

Deliberation Focus Groups:  In these focus groups, jurors do not have the opportunity to talk amongst one another until after hearing a plaintiff’s and defendant’s statement of the case.  Questionnaires are usually administered at the start of the project and after each statement to track juror attitudes as the case progresses.  After the presentations, the moderator leaves the room and jurors are left with a verdict form and instructions to deliberate to a unanimous verdict on all questions.  This type of focus group will tell you how jurors respond to the case as a whole and what issues are likely to come up during deliberations.  You will get a good sense for what information is important and what information jurors are likely to dismiss.  These focus groups are best suited for mediation or trial preparation after there is enough discovery to have a solid idea of the case and what evidence is likely to be admissible.  It is still advisable to conduct these focus groups before discovery deadlines as you will often learn from jurors that you need exhibits and experts you had not thought to designate. 

Exhibits: Exhibits can be presented during either a concept or a deliberation focus group, but you can also run a much more streamlined and simple focus group solely for the purpose of testing juror reactions to exhibits or demonstratives.  Recruit jurors from your venue and get feedback on whether your exhibits convey the message you think they do.  You can test exhibits from multiple cases in these focus groups since you are not looking for an overall opinion of case facts but rather are probing for messages your exhibits are sending.

Timing: With the possible exception of a focus group dedicated to exhibits only, it is recommended that you run at least one focus group prior to mediation.  The insight gained during the exercise should increase the settlement figure by at least as much as the focus group cost you.  If the focus group is favorable to you, take video clips into mediation with you, accompanied either by your consultant who ran the focus group or a letter from him/her explaining the reliability of the methodology and the results.  Mediation is about predicting what jurors will do with a case if the case goes to trial.  If you can show you used reliable methods to determine what is likely to happen at trial and the results are in your favor, you will have a very good chance of increasing the settlement figure.  If, on the other hand, the focus group yields some unfavorable results with problems that are unsolvable, you will have learned some valuable information on the amount you should settle the case for to prevent a defense verdict at trial. 

Regardless of what type of focus group you run, make sure you follow scientific principles so the results do not mislead you!

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