Welcome to What Happens Next.
My name is Larry Bernstein.
What Happens Next is a podcast
which covers economics, finance, politics, and the law.
Today's topic is Juries, Opportunities or Peril.
Our first guest will be Sennale Chakravarti,
who is a professor of political theory
at Wesleyan University,
who focuses on the importance of Juries to Democracy.
She is the author of the book,
Radical and Franschizement in the jury room in public life.
And Sennale will discuss how to expand jury nullification.
Our second guest will be retired
Federal District Court judge, Gary Finerman,
who left the bench at the end of 2022
to become a litigation partner at Latham & Watkins.
Gary presided over 48 jury trials,
and I want to learn from Gary
about what he learned watching Juries
from his vantage point as a judge.
Our third guest is David Stellings,
a law partner at Leif, Cabrese, Hyman, and Bernstein.
David is one of the top class action lawyers in the country
and represented the class in the famous VW Diesel case.
David will discuss the challenges
working with the jury in complex civil litigation.
Our final speaker will be the What Happens Next film critic,
Darren Schwartz, who reviewed the classic 1957 film,
Twelve Angry Men, and its continuing relevance
to understanding the inner workings of jury deliberation.
There is much to cover, so buckle up.
I make this podcast to learn, and I offer free of charge.
If you enjoyed today's podcast,
please subscribe from our website for weekly emails
so that you can continue to enjoy this content.
Let's begin with Sennali.
Hi, my name is Sennali Chakravarti.
I am professor of political theory
at Wesleyan University in Middletown, Connecticut.
My focus is on the relationship between law and politics,
and my research is on juries in the American criminal system.
When we think of the term enfranchisement,
oftentimes we think of voting.
But I'm actually interested in being a juror.
And being a juror is the most demanding civic obligation
that we have.
It requires us to talk with our neighbors,
to persuade, to engage, to listen
in order to make a decision of incredible importance
to someone else's life.
When Alexis de Tocqueville came to the United States
in the 19th century, he observed juries,
and he found them to be one of the most inspiring
and ennobling parts of democratic life.
He actually thought that courtrooms
were a type of schoolhouse for democracy,
where ordinary people could be the authors of the law,
as is called for in a democratic society.
Juries are the only place in legal and political life
where ordinary people have final decision-making power
in their hands.
The messiness and mistakes of the jury system
are the mistakes and shortcomings of democracy itself.
Juries point us to what we need to work on in democratic life.
One of the key provisions in the Sixth Amendment
of the Constitution, which ensures the right to a jury trial,
is that the jury be impartial.
And when you ask people what impartiality means,
they're often quick to say it's fairness,
or treating both sides in an argument equally.
But this definition is not always the best way
to think about legal impartiality.
It doesn't make sense for jurors to treat both sides equally
because the state is supposed to prove
their case beyond a reasonable doubt.
The state has a burden that the defense does not have.
One of the biggest problems we face with the jury system
is racial discrimination and the fact
that jurors of color are not well-represented.
One black jurors speak very candidly
about either their negative experiences
with law enforcement or their concerns
about systemic racism or patterns of police violence
against black people.
This could be used as a basis for their dismissal.
And these strikes don't need to be based on any particular reason.
Both sides have a certain number that they can use.
And what we've seen is that black jurors
are removed at a higher rate than other jurors.
One case that I've studied is the trial of Derek Chauvin
for the killing of George Floyd.
The judge in that case knew that people had strong feelings
about the video they had seen,
even before being called to the jury service.
But what I respected and appreciated
was that the judge allowed people to be candid about
what they knew about the case, how they felt about it,
about how it connected to other cases
of police violence in the past.
But he also made sure that Derek Chauvin
was going to get a fair trial.
And that Chauvin had all of the protections
that he was entitled to.
If a juror could not see Chauvin being acquitted,
they should not be on this case.
There are two things that contribute
to the power and independence of jury decisions.
One is that the decision a jury makes
cannot be overridden by a judge or other office of the court.
And the second is the secrecy that juries are entitled to
during their deliberation process.
There's no transcript of what happened.
There's no officer of the court that is recording it.
It is very frustrating for scholars of juries
because we never get access to what happens inside
a deliberation room.
Of course, some jurors write memoirs or talk to the press.
One of the things that emerges from these core ideas
of the independence of the jury
is the power of jury nullification.
Nullification refers to the power to render
not guilty verdict apart from the evidence.
And this can happen for a variety of reasons.
The jury can think that a law itself is unjust.
A jury could also think that the application of the law
doesn't make sense in this case.
So despite there being ample evidence
that might lead to conviction,
the jury does not want to reward the prosecution
for the way it conducted itself in this case.
The last reason for nullification
is that the jury wants to show some type of mercy
or compassion to the defendant.
It is subtle in the sense that while a jury
can render not guilty verdict based on something other
than the evidence, jurors can never render guilty verdict
based on something other than the evidence.
In my work, I argue that we should have more discussion
and more education around nullification.
It is both an opportunity for the jury
to express something important about a law.
But it can also be misused.
One example of its misuse was that there were juries
in the Jim Crow South that nullified people
who were put on trial for lynching,
that there was ample evidence that jury decided
in these cases, render a not guilty verdict.
On the other hand, I've written about how in 1850,
the Fugitive Slave Act asked for harsher punishments
of those who helped slaves escape,
juries in the North repeatedly refused
to punish people for that.
Let's start with Tocqueville.
He traveled to the U.S. with his brother
to observe our prison system.
And on that historic visit,
he was introduced to the American jury system,
which he liked.
France does not have juries.
And the role of the judge is different too.
In France, judges have a duty to ascertain the facts
and they cross-examine witnesses.
But in the U.S. judges are limited to interpreting the law
and deciding the verdict and sentencing.
Tell us about the differences between the Anglo-Saxon
and continental European legal systems
with regard to the use of juries.
One thing that is most striking about Tocqueville's
observation about juries is that it's coming from a person
who is really afraid of mob rule.
He had seen how the French Revolution treated royalty.
He was also just skeptical and nervous
about giving people too much power.
You didn't have a cognitive requirement
and you were choosing people randomly
and you were giving them final decision-making power
on a very important topic.
I think that's what really stood out to him,
that there was a way to harness democratic power
in a way that made sense.
Tocqueville called judges the closest thing we have in America
to an aristocracy, but I have argued in my work
that actually just realized they are different
from judges in a good way.
They aren't tied to the minutiae of the law as judges are.
They don't see defendants every day.
Things that strike them as new or shocking or unusual
should be given greater concern.
I go back to the founders who really cared about juries
because we're moving from a monarchy to a democracy.
We're still afraid of the tyranny of this state.
We need a government that has significant amount of power,
but they can misuse that power.
And one of the worst ways you can misuse power
is by taking away liberties from someone
who doesn't deserve to have their liberties taken away.
We would rather have a system that has strong checks
on the abuse of power.
There is a concept that better 10 guilty persons go free
than one innocent suffer.
I think it's called Blackstone's ratio.
What do you think about that ratio for risk of jury error?
This is an issue on which reasonable people disagree.
It's a strength of our democracy right now
in that we are comfortable with the trade-off.
We don't feel like we have let too many people go
such that our quality of life is affected.
And I'm thinking of cases of sexual assault
since the Me Too movement and things like that,
where is that ratio?
I was telling too many people go.
In general, it speaks to how much we want to protect liberty
in democratic life.
And we live with the cost of that.
The closer you are to crime as a victim,
the harder it is to accept that ratio.
Sometimes, juries to what you want,
and sometimes they don't.
If you expand jury nullification,
you're going to get haphazard implementation.
Some jury decisions you'll agree with
by letting violators of the fugitive slave act go free.
While you disagree with not imprisoning the lynchers,
some would argue that jury nullification is problematic
because it undermines the democratic process
of making laws that apply to everyone.
And that if you have nullification,
then it will be decided by 12 individuals
that run counter to the wishes of the democratic majority.
If you want to change the law,
why not make the legislature do its job?
With nullification, we're letting 12 people decide
on a specific case.
If there is an altercation,
jury refuses to enforce an anti-lynching act.
It doesn't change the act itself.
It's a one-off decision.
I've argued that I think we should pay more attention
to jury decisions as a way of getting information
about where people are at in regards to different laws.
Some scholars have argued that the relaxation
of marijuana possession laws in many states
was partially the result of juries nullifying those cases.
There should be a dialogue between what juries are doing
and what legislatures are doing.
But, dear point, do we want to empower individual people
to act on their conscience or their principle,
even when it's in opposition to the law
that was decided democratically?
I think it should be taught alongside civil disobedience,
which is a principled stand against a policy.
Norman Rockwell has a series of paintings
entitled The Four Freedoms.
And one painting is entitled The Freedom of Speech.
Rockwell's illustration shows a man speaking
at a local town hall.
And I think the idea is that everyone has a right to speak,
but more importantly, can make a contribution
to the democratic conversation.
I think your argument is that the jury is another form
of that conversation, albeit behind closed doors.
Funny you mentioned Norman Rockwell, because behind me,
I actually have a print of a Norman Rockwell painting
and it's called The Jury Room.
And what we see is a group of jurors around her table
trying to convince one juror,
just to keep it with her hands,
and you can see some intensity in the faces of the other jurors.
And the one juror who seems to be the holdout
is the only woman on the jury.
And she seems to be quite committed
to holding her own position.
Litigation is complicated.
Civil matters require an understanding
of how the world works.
And criminal proceedings have gotten more complicated too,
with innovations and forensics.
What makes a good juror?
So one thing that comes to mind
is that being a good juror should be the goal
of K through 12 education.
Creating a citizen in democracy is one of the reasons
why we have public education in the United States.
It's to have the science skills, economic skills,
reading skills, psychology skills to be a good juror.
And I feel like that is what high school is for.
I enjoy watching the TV show Law and Order.
The show, without commercial, lasts 45 minutes.
And it's split between the police investigation
and the prosecution in trial.
In real life, the trials are not action-packed,
and the trial lasts for more than 22 minutes.
It's boring.
The questions sometimes seem pointless.
Jurors fall asleep.
I'm not attacking the jurors.
It's likely that the lawyers are doing a poor job,
and that the underlying trial method is flawed
and too time-consuming.
What do you make of the tedious nature
of civil and criminal procedures for the jurors?
I'm optimistic that legal system
takes this problem seriously,
and shorter trials is one way to do it.
Your point about attention is also really key.
We know that our attentional faculties
are being affected by how we gather information now,
how we're used to kind of things at our fingertips
through the internet, through social media,
when you're a juror and you're told not to be on your phone,
it also makes it harder to pay attention in those contexts.
I think we have less patience
and even less attentional ability.
Studies have found that people who serve on juries
end up feeling more positive about legal system
than when they came in.
They're more likely to follow the news.
They're more likely to vote in the next election.
So we see all of these kind of spillover civic effects
from serving on a jury.
One of the most famous books in legal sociology
was written in the 1960s,
entitled American Juries by Calvin and Zeissel.
And the authors sent questionnaires to judges
to see if they agreed with the jury's verdicts.
What I thought was interesting is that the judges
uniformly thought that the juries were more lenient
than they were.
I don't know correctly,
about 80% of the cases that jury's verdict
was the same as what the judge would have decided.
I think it shows that jury's on the whole gendot right.
They can understand complex evidence that you brought up
and to the point about more leniency,
that's also what we would hope to see.
The reason we have a jury is in part to have
people who can more easily relate to the defendant's position
than they can to anybody else in the courtroom.
We often see that with celebrities,
and people who are well known,
they think that maybe their celebrity will help them
with the jury in a way that a single judge
won't be as starstruck with a celebrity defendant.
When the jury gets a wrong verdict, there's a cost.
A criminal could be let go
or an innocent person can be imprisoned.
There's also a problem when society believes
that the criminal justice system does not work.
I'm looking at you, OJ.
The cost of a wrong verdict is very high.
The importance of the jury as the cornerstone
of the legal system, as the basis for integrity
of the legal system reaches far beyond the number of cases
that actually go to jury trial.
The importance of the jury is one that crosses
political divides, Republican judges,
as well as the Democratic appointed judges,
all want to uphold the jury system.
If we keep seeing bad decisions,
or if we keep feeling the process is failing,
that leads to a crisis of legal legitimacy.
What do you think is the optimal size of a jury?
I think 12 is a good number.
I think those are our states that have six on their state
juries.
You might have less of a chance of a pluder,
but I think you have a less of a chance
of a dissenting opinion as well.
What we know about hung juries is oftentimes,
as opposed to this normal Rockwell painting,
where one person looks like they're going to be the holdout.
We know that when juries really are hung,
it's usually more than one person.
For the quality of debate to be high,
I think 12 is a good number.
What are you optimistic about with regard
to our legal system?
I am optimistic that Americans can hold two seemingly
contradictory truths together about the legal system,
like ways in which the legal system has been corrupted,
but that this adversarial trial is a good way
to adjudicate difficult issues in democratic life.
And we need to find humane ways of making decisions
when people break the law.
I believe that Americans can do both these things,
be honest about the past,
and hopeful about legal judgments in the future.
Thanks, Sonali.
I'd like to move to our second guest,
retired Federal District Court Judge Gary Finerman,
who is now a litigation partner at Latham and Watkins.
And he will discuss juries from his vantage point
as a former judge.
Thank you, Larry.
It's a pleasure to join you again on your podcast,
and I'm very happy to talk about one of my favorite subjects,
which is juries.
Just a brief outline of juries in the United States.
The Sixth Amendment to the Constitution
gives criminal felony defendants the right to a trial
by jury, and the Supreme Court has incorporated
the Sixth Amendment through the 14th.
And what that means in lay person's terms
is that the Sixth Amendment applies not only
in federal court, but in state courts as well.
So in any felony trial in the United States,
state or federal, that case will be tried to a jury
unless that right is waived, in which case it's a bench trial,
meaning that the judge decides whether the defendant
is guilty or not guilty, rather than a jury.
Nearly every state provides a jury trial in civil cases.
United States courts make far more use of juries
than virtually any other country in the world.
And the fact that we have the Sixth and the Seventh Amendments
reflects a desire by the framers
to repose power as much as possible in the hands of citizens
rather than in the hands of government officials.
The jury trial rate is a bulwark against government oppression.
My law partner and friend Sean Berkowitz
discussed an example of that phenomenon
a few months ago on your show, Larry,
in connection with the Michael Sussman trial
that took place in federal court in DC last summer.
So how does a jury get selected?
Because litigants are entitled to a fair and impartial jury.
And the process is called Waidir.
So what happens is the court's jury department
sends out jury summons to citizens
because only citizens can serve on a jury.
The list can be drawn from voter rolls,
driver's license records, or other public records
that capture a large portion of the population.
The jury department then selects a group of prospective jurors
and that group is called either a Vanaya or a Vanir.
And then in my former court, where I sat on the Northern District
of Illinois, our Vanaya for criminal cases
was between about 40 and 50 people on average.
And in a civil case, it was about 25.
In my courtroom, the prospective jurors
filled out a written questionnaire
that asked questions about their background
and their views of particular subjects.
And each questionnaire was customized
for each particular case.
So for example, I had a jury trial
involving a false advertising case brought by Dyson.
Against Shark Ninja, it involved vacuum cleaners.
We had a screen out for people who were employed
by either Dyson or Shark Ninja,
people who would add negative experiences,
positive experiences with either company,
or people who were in a business
where they had been either subject to
or had brought a false advertising suit.
While they might be great jurors, in any other case,
Dyson versus Shark Ninja probably wasn't the case for them
because they would carry some baggage with them
that would make it hard for them to be fair and impartial.
And then I would ask each prospective juror
and the Vanaya questions in open court
directed towards answers they had given on their written
questionnaire that appeared problematic.
Then outside the jury's presence,
each side can move to strike for cause
any prospective juror that couldn't be fair.
I would rule on those motions.
And then of the remaining prospective jurors,
each side could exercise peramptory challenges,
meaning that they could strike those prospective jurors
from the case without giving any reason at all.
And in federal court, each side in a civil case
gets three peramptory challenges.
While in a criminal case, the government gets six
and the defendant gets 10.
So there have to be 12 jurors in a criminal case.
And there are at least two alternates
in case a juror drops out in the middle of the trial.
And there could be anywhere from six to 12 jurors
in a civil case in the relative size of criminal
and civil juries along with the greater number
of peramptory challenges in a criminal case.
The fact that there are more successful strikes
for cause in a criminal case than in a civil case
is why the criminal Vanaya is much larger than a civil Vanaya.
Juries, they've been subject to criticism,
but I think overall it's a force for good in our society.
Now make no mistake, juries have gotten things wrong
and sometimes gravely wrong.
Whether intentionally, and you could think about,
criminal trials that took place in the south
where there might have been a black defendant
back in the 20s or the 30s,
and there are other instances as well
where there was an intentional miscarriage
of justice by a jury, or innocently,
the jury sincerely thought that one thing
had happened when in fact it hadn't.
But in my experience, juries generally get it right.
I presided over several dozen jury trials
when I was a judge over my 12 years
in federal court here in Chicago,
and I can recall only one or two instances
where I thought the jury had definitely made a mistake.
Another benefit is that having a collective decision-making
body composed of ordinary citizens,
I believe gives the party's greater confidence
in the integrity of the verdicts that are produced.
When there's a jury, the verdict isn't the product
of one person's, meaning the judges, bias or proclivities
or inattention.
It's a group of people that get together
and debate what the final result should be,
and I think that leads to more confidence,
and it probably leads to more accuracy
on average and over time.
And finally, I found that the jury system restores
or cements the faith that the jurors themselves have
in our system of government.
Very few people show up for jury service
wanting to be picked for the jury.
When I read the names of this jurors
who are gonna be seated,
there invariably were some long faces among those
who were selected.
But I would watch very close to the jury during each trial,
whether it's questioning of witnesses
or argument of lawyers,
and most jurors were very obviously paying
very close attention to the proceedings.
And then after each trial,
I would speak to the jury in a private setting
after they had returned their verdict,
and they invariably and unanimously would tell me
what an enlightening and inspiring experience
it had been for them.
And jury service, at least for the 12 in a criminal case
or the six through 12 in the civil case,
it showed them that government can work and work well,
and at least in that particular instance,
reach a just and fair result.
Who wants to be on a jury?
Many people can't get away from work,
and this can be a real sacrifice.
People don't wanna be on the jury
because it takes up a lot of time.
And it is an imposition on ordinary citizens
to kind of be plucked off the street
and placed in a courtroom,
and then selected your basically conscripted
the way that most of my colleagues
in Chicago federal court dealt with that
is to ask the jurors,
will serving on this jury be a substantial hardship on you?
We would tell them how long the case was gonna take.
And then some people would give really compelling answers,
like I'm the sole caretaker for a small child
and I can't get coverage this week,
or I have a business trip planned this week
that can't be rescheduled,
or I have a long-awaited vacation
and I already bought my airline tickets
and booked my hotel, or I have surgery scheduled.
And in those cases, we would excuse those jurors
and we would call it a hardship excuse.
But for people who just would rather
all things being equal not be on the jury,
those excuses didn't get far in my former courtroom.
On the other side of the coin,
there are people who want to be on the jury very much
and that could be for either good reasons or bad reasons.
The good reason person wants to fulfill
a duty of citizenship, which is sitting on a jury,
thinks it would be interesting and worthwhile.
And that's great.
Then there are people who want to be on the jury
for not so good reasons and that's usually
because they have an axe to grind.
Whether it's in a criminal law case,
either they are inclined to return a guilty verdict
or a not guilty verdict.
People who have a particular view of the civil justice system,
whether they are anti-corporation or pro-corporation
and think that there are too many civil lawsuits.
And the questionnaire that I had,
all the prospective jurors fill out
was designed to suss out those people.
When juries were first used hundreds of years ago,
we lived in small villages and everyone knew each other
and did business together.
Does the application of the impartiality doctrine
mean something different now?
The Dyson Shark Ninja case,
just because somebody had a vacuum cleaner
made by one or the other,
wouldn't have been a reason to strike them for cause.
It's that if they had a real problem with one of them
and had held a grudge against one or the other of the companies,
same thing with having a General Motors car
or flying on United Airlines or using Facebook.
Some products are ubiquitous and all of us use
one brand or the other.
It's only if you have a strongly positive
or a strongly negative experience.
Is that a ground for striking for cause?
In terms of people, yeah, you're right.
Back in the day, the jury pool was very small
and before automobile transportation.
Members of the jury pool, all of them may have known
either the criminal defendant or both in a civil case.
I like our system now because it's hard to be a fair
and impartial juror because you're gonna have had experiences
with that person that are either positive or negative.
And even if you try to put those experiences aside,
it can't help but call your judgment
as to what actually happened.
So that's the principal screen.
First, I have both sides introduced themselves,
the lawyers and the parties.
I have everybody stand up and state their name
then I ask all the prospective jurors,
do any of you know anybody at either table?
And if the answer is yes, that's an automatic strike
because the presumption is that they can't exercise
fair and impartial judgment in the case
because they personally know one of the players,
whether it's a lawyer or a party.
And I think that leads to more fair results
because then the juror's personal experience
isn't gonna impinge on their judgment.
What do you think about jury size of 12 people?
And do you think that the collective
is better at evaluating evidence than a smaller group?
Having a sufficient number on the jury,
where you're gonna get some diversity of perspective
and diversity of thought is so valuable
because one person, one juror may see things
in a different way than the other person,
the collective decision making process,
when you get a bunch of people around the table
and they talk about their perspectives,
it could reveal blind spots in your own thinking
about a case that you probably wouldn't have been aware of
had you just been thinking about the case on your own
as opposed with a group of 11 others.
I think that that size improves accuracy
and fairness of the ultimate result.
The film, 12 Angry Men gives a fictional depiction
of a jury deliberation.
What do you make of that fictional representation
as compared to what you see in practice?
Well, it's 12 Angry Men and that's your first tip off
that it doesn't reflect contemporary practice
because you're not gonna have an all-male jury
in contemporary times.
If memory served, that was not a very well-functioning jury
because part of the drama of the case
was that certain members of the jury
brought their biases and prejudices into the jury room.
The jurors may not have been of like mind,
but they were of like background.
That jury didn't work as well as contemporary jury
is where you have people from all walks of life.
Across the geographic region from which the jury is drawn,
you're gonna have a diversity of experience
and a diversity of perspective
that wasn't present with those 12 Angry Men.
I participated in Vaudir in a New York City court
and many of the prospective jurors
did not seem qualified for the task.
The jury pool included people from all walks of life.
I remember one line of questioning
that lasted five minutes with one guy
before the attorney realized that he could not speak English.
The example you just gave is a reason
to strike somebody from the jury
because our proceedings here in the United States
are conducted in English
and if you can't understand English,
you really shouldn't be on the jury.
So that's an easy one,
but that's the beauty of the jury system.
You're gonna get lawyers and bankers and doctors
and cab drivers and teachers and postal workers
and custodial workers and short order cooks
and unemployed people and retired people.
You're gonna get people from rural areas,
from suburban areas, from urban areas,
and they're all thrown together
and that's what I meant by diversity.
And of course, a part of diversity
is racial diversity and ethnic diversity.
You're gonna have gender diversity.
That's easy to do.
If it's done right,
you're gonna have people from all walks of life,
so-so economic diversity, professional diversity,
ethnic and racial groups as well,
particularly where I live, Cook County,
which is a very big metropolitan county,
and the Northern District of Illinois,
my former court, has Cook County
and many of the collar counties.
One benefit of a diversity and experience
is that potentially one juror
can bring relevant knowledge to the jury deliberation.
I don't know if you were a happy days fan back in the 70s.
Do you remember the episode where the fonts
was picked for a jury?
No, it was a criminal case
and I don't remember it exactly,
but the defendant was riding a motorcycle.
And of course, the fonts wrote a motorcycle
and he knew a lot about motorcycles.
And in the deliberations,
he said, this particular defendant's motorcycle,
the accelerator are on the left handlebar
rather than the right handlebar,
so it would have been impossible for this defendant
to have committed the crime,
given the kind of motorcycle that that defendant drove.
And so you have the fonts on the jury
bringing his perspective and his knowledge
of how motorcycles work
and how this particular motorcycle works.
When does it make sense for a defendant
to choose a bench trial with a judge instead of a jury?
If it's a case that turns on a very technical issue of the law,
I think you're probably better off with a judge
than with a jury.
Otherwise, you're probably better off with a jury.
I'll give one example.
So I had a case when I was a judge, it was a drug case.
And there were a couple counts
that charged distribution of fentanyl.
And then there was one count
and it's a separate crime that charged distribution of fentanyl
that resulted in serious bodily injury
to the person who used the fentanyl.
The defendant lead a guilty to distribution,
but went to trial on the serious bodily injury charge,
which was a separate crime.
And that defendant chose a bench trial.
And that was a good move
because if you present that case to the jury
where you say, yes, I admit that I'm a fentanyl distributor
and I want you to decide that this person
who suffered very, very adverse physical reaction
after taking my fentanyl, that it wasn't my fentanyl
that caused that adverse reaction.
It was somebody else's fentanyl that did.
I could see that that would be a tough sell for a jury
because the person's an admitted drug dealer
and the jury's not gonna be wanting
to give that person any favor.
That person chose a bench trial
and it was actually the right decision,
at least in that instance,
because I ended up acquitting the defendant
of that more serious charge.
I was in the business of being a judge
and you learn to compartmentalize different facts
into different buckets.
I was better able probably to put aside the fact
that this person was a fentanyl dealer
and focus solely on did the government prove
beyond a reasonable doubt that the physical distress
suffered by the person was caused by that defendant's fentanyl
as opposed to other fentanyl that that person had taken
from another supplier.
I said this on the record when I delivered the verdict.
I thought it was probably more likely than not
that the user's physical distress was caused
by the defendant's fentanyl,
but I couldn't get all the way up to beyond a reasonable doubt.
So I acquitted the defendant
and that defendant might have gotten the same result
from a jury, but I think in that situation
where it's kind of a technical question
where the trial of fact has to put aside uncomfortable facts
about the defendant,
probably better off with a judge.
The previous speaker, Sinali Chekhravarti,
discussed the benefits of jury notification
and her desire to expand its use.
Where do you stand on the issue of jury notification?
I think that's a horrible idea.
It would be an absolute disaster
and it would end up probably hurting
more criminal defendants than it would help.
And here's why.
The jury takes an oath to follow the law.
They actually stand up and the courtroom deputy,
the marshal or the bailiff reads an oath
and the jurors say I do.
So they would be violating their sworn oath as jurors
if they were to not faithfully apply the law to the facts
and render a verdict that is based on their fair evaluation
of the evidence I tried when I was a judge
in immigration case where the charge was a legal re-entry.
It's probably the easiest charge for the government to prove.
The crime is re-entering the United States
without permission after you had already been deported.
So all the government has to do is show
that the person had previously been deported
and then they say, Evwala.
And so during voir dire,
some of the people on their questionnaire
indicated a discomfort with the immigration laws.
And so I would question those prospective jurors.
And one of them, I don't agree
with the country's immigration laws.
I'm gonna acquit no matter what.
And I said, I understand, but that's not your job as a jur.
Your job as a jur is to figure out what the facts are,
apply to a lot of the facts and render a verdict
based on your determination of the facts.
And he said, I understand that,
but I just will not convict.
And I said, I completely respect what you're saying.
And I really appreciate your honesty.
And of course that jur got stricken.
And of course, your guess would have wanted that juror
on the case.
So now he's best example for jury nullification
is the Fugitive Slave Act
where Northern juries refused to convict those
who protected slaves who escaped
and didn't assist the return of the slaves to the south.
And she said that those juries felt that the law
was illegitimate and therefore did not enforce it.
And she said that it's the beauty of the jury system.
And I guess what you would say is,
if when some potential juror says,
I view that law to be unethical, you toss that guy.
And she thinks that's a problem.
Yeah, so now I talk myself into being in favor
of the Fugitive Slave Act.
You're not saying that you favor all the laws.
You're saying that it's the job of the legislature
to make the laws and the jurors to ascertain facts.
You just gave the best counter argument
to what my position is.
And to have a jury enforce a hideous law
like the Fugitive Slave Act is probably the best argument
for jury nullification sitting here.
I can't really argue against that.
What I would say is this,
you can go in the other direction
because jurors commit to follow the law.
And sometimes a faithful analysis of the facts
has to lead to an acquittal.
And you want your jurors to feel bound by that obligation
to return an acquittal,
even if they think the defendant is a really, really awful person.
Sometimes really, really, really awful people go to trial.
And it just so happens that they didn't commit the crime
for which they were charged.
And you don't want a jury to say,
well, I'm gonna nullify the reasonable doubt standard
and find this person guilty.
Because I'm sure this person did something wrong
that warrants punishment,
that they aren't necessarily being charged within this case.
And whether they did what they were charged with
in this case or not, well, I don't really know,
but this person deserves to be in prison.
And therefore, we're gonna return a guilty verdict.
That's another form of jury nullification.
And that would be just awful.
And I think that the proponents of jury nullification
are missing that extreme danger
that their theory could possibly result in.
What do you think of jury consultants
and the escalation in a more refined voir dire
and tailing arguments for this specific jury?
I'm not sure I would call it escalation.
I would just call it a more refined understanding
of your voir dire.
And whether it's a jury consultant that's doing that
or whether it's an attorney on the team
that's focused solely on keeping taps
on whether the jury is paying attention
and how they are reacting to certain things,
it really doesn't matter.
And so now what jury consultants do
is that they bring more refined tools to the table
in order to make the same judgments
that lawyers have been trying to make
for however long parental challenges have been in place.
It's kind of like scouting in professional sports,
50s, 60s and 70s.
It was just based on gut and feel.
And then analytics started coming in
and nobody would say that that's unfair.
It's just that the scouts are doing the same thing
that they were always doing
which is trying to find the best people for their team.
They're just bringing different tools to the table
and they're not illegitimate tools at all.
Moving to civil litigation, some trials are complicated.
They don't call it complex litigation for nothing.
Jurors need to be capable of understanding
technical materials and I'm not sure
all jurors are up to the task.
It's a legitimate concern.
You could find that probably manifest itself
most regularly in patent cases
that involve very, very complex technology.
And it may be hard for lay jurors to understand
the technology that's involved
and whether there's infringement.
It's really, really difficult.
But what a good lawyer will do is present
those very complicated concepts
in a manner that the jury can understand.
And it's their role to figure it out.
I guess the presumption of your question
is that a judge would better understand
the technology in the patent case.
And that may be true in some instances,
but it wouldn't be true in other instances.
So I think the problem is we ask the justice system
to call balls and strikes and to render judgments
in situations where the factual matter
being considered is very, very difficult and complex.
As to whether a jury is better at that than a judge,
I'm not sure.
And if the parties are concerned enough about it
and both of them are concerned,
they can go to arbitration and get some experts to handle it.
Mock juries are a great way for lawyers
to find out how lay people respond to arguments.
You're a tired judge.
Do you think that you have specialized knowledge
for how you expect a judge will respond to a motion
or an interpretation of a law in a specific case?
Hopefully I could bring a lot.
I guess we'll see.
When you're a judge, you just have so many reps,
whether it's deciding motions
or conducting hearings or presiding over trials,
that you can't help but get a more refined sense
of how a particular argument or a motion
or issue is gonna play out in front of the judge
in a pretrial setting,
or how a particular piece of evidence
or approach to a witness or trial strategy
will play out in either a bench trial
or a jury trial.
I've had 12 years as a federal district judge.
I have that perspective and hopefully that will allow me
to provide representation to the clients
that they might not otherwise get from lawyers
without that perspective.
Judge Richard Posen wrote a book, How Judges Think
and in the book,
Poseners said that lawyers should concede arguments
that they're gonna lose,
better to admit the bad ones
and explain why they don't matter.
Do you agree with Judge Posener?
That's a great insight, Larry,
and it's very important to make strategic concessions
because there are some arguments
on whose hill you don't wanna die
because you will die there.
If you keep pressing an argument,
that is a loser,
that's gonna hurt your credibility
in front of either the judge or the jury.
And second, and this is one of the perspectives I bring
from 12 years on the bench,
it's gonna make the judge think that in order for you to win,
you have to prevail on that particular issue.
And if that particular issue is a clear loser,
it signals to the judge that your bottom line is gonna fail.
As long as you have a way around that strategic concession,
which is X may be true,
but I still win the case still should be dismissed.
Summary judgment still should be granted.
Class certifications still should be denied.
That's the way to go.
It actually shows confidence in your bottom line
to make strategic concessions
because you're saying, yes,
the other side has this good point,
but it doesn't matter because of these other arguments.
It's a very important thing to understand.
Many lawyers understand it, but many lawyers don't.
That you don't have to win every battle in a case.
You just have to win the important battles.
And winning the important battles often turns on
having the judge believe you on the important battles.
And that in turn depends on showing the judge
that you recognize the weak areas of the case
and you have a way of dealing with them
because that's the thought process
that the judge is going through.
You retired from the federal bench at the end of 2022
and you're now a partner
with the law firm, Latham & Watkins.
Why did you make that professional change
and what do you think you bring
from your judicial experience to your new job?
Being a federal district judge was the honor
of my professional lifetime.
It was a wonderful job.
I loved my coworkers and my law clerks and the staff,
but I had been a judge for 12 years
and what I realized towards the end,
I missed getting in the ring,
making arguments on behalf of a client
and being an advocate and all that entails.
Second, being a federal district judge
is a lonely professional existence.
And said, again, I had my colleagues
and they were wonderful,
but you decide cases on your own.
Most of your professional existence is solitary
and I realized towards the end
that I was more of a team sport person.
I have gotten back to the ring,
representing clients and contested matters
and bringing the bear the perspective
that I obtained over the last 12 years as a district judge,
whether it's as a full-fledged member of a trial team
or a litigation team, lawyers always ask themselves
and should always ask themselves,
well, what's the judge gonna think of this?
What's a jury gonna think of that?
And I'm well positioned to answer that question,
whether it's a motion or a contested hearing
or whatever critical junction there is in a case.
What are you optimistic about as there awaits to juries?
I'm optimistic about juries
because I saw firsthand how they operate.
They take their job very, very seriously.
It's important when you do have a chance
to be part of the government
and when you're a juror,
you become part of the judicial branch,
at least on a temporary basis.
You want to get it right and you want to do justice.
In my experience, my juries understood the need
to pay very close attention and to render a fair verdict.
And they did so.
The reason I'm optimistic is I think
they're gonna continue to do so.
Thanks Gary.
Our next speaker is David Sellings,
who is a partner at Leaf Cabrese, Hyman and Bernstein,
which is a class action firm.
David will give us the perspective of a jury
from a class action lawyer.
David, what is your job?
I am a plaintiff's class action lawyer.
What are the typical class action lawsuits
that you will work on?
My firm and I work on lots of different types of cases.
For example, now we're part of the leadership structure
and the litigation against the opioids industry.
We also do a lot of case involving product liability,
employment discrimination cases, we do antitrust cases.
You led the VW DSO class action.
Yes, that's a product liability case.
Do these class action cases usually end up in front of a jury?
Yes, the vast majority of the time,
when the cases go to trial, the jury is the fact finder.
Do you view having a jury as an opportunity?
Absolutely.
The corporate community believes that a jury trial
is like owning a lottery ticket in your favor.
Do you view it the same way?
Jury trials are really risky for everyone, both sides.
Everyone has experienced the surprise
of winning a jury trial that you expected to lose
and losing a jury trial that you expected to win.
So it's really a role of the dice
and there's a whole industry that exists,
specifically to help litigants, lawyers,
choose jurors for jurors.
What percentage of your civil trials use juries?
Probably 75, 80% of my cases would go to a jury
instead of a bench trial or judge trial.
Is that your choice?
It's always the plaintiff's choice
at the beginning of a case to request for a jury trial.
There are certain types of claims
that as a matter of law are only tribal to a judge.
Do you look at the jury as an opportunity or peril?
It's an opportunity because jurors are people
with their own experiences, their own viewpoints.
And if you have the right jury,
you can craft a narrative that is tailored
to your particular jurors that will hopefully appeal to them,
both on an intellectual level and also an emotional
and psychological level.
So generally speaking, when you have a bench trial
and you're trying your case to the judge,
the judge is the one who's deciding everything.
Judges are obviously very experienced
in presiding over cases.
I'm sure that you don't lose many jury trials.
So as you reflected back on your losses, why did you lose?
I lost the cases well before we got to trial.
There are so many times during the life of a class action
in which a plaintiff's claim can be extinguished.
The cases that I can think of,
I lost on summary judgment.
So after the evidence had all been collected,
the defendant said to the judge,
there's not enough here to support plaintiff's claims
and the judge agreed.
Why do you choose a jury over a judge?
I don't always ask for jury trials.
It depends on who my judge is.
Some judges are viewed whether rightly or wrongly
as more open-minded to certain types of claims
from plaintiffs.
Some judges are viewed as more open to class action.
Some judges are known as more skeptical
to class action cases.
And so sometimes we tailor our requests to our audience,
which is what every persuasive arguer should do.
Tell me about your strategy for opening remarks
before a jury.
Generally, we're trying to make the jury feel that
our client has been wronged,
that there's a fundamental unfairness involved
and that it would be unfair to allow the corporate defendant
to get away with this type of bad behavior.
What do the corporations lawyers do in their opening?
It varies from case to case.
Most of the time corporations focus on the warts
of the plaintiffs themselves in class action trials.
They'll try to make the jurors or the judge for that matter
dislike the plaintiff.
They'll point to maybe the plaintiff is a huge complainer.
Maybe the plaintiff has sued 10 different times.
Of course, we would never go to trial with the plaintiff
like that, but those are the types of things
that defendants are looking to do
to make the plaintiff as unsympathetic as possible.
They also talk about what good their corporate defendant
does in the community, in the United States generally,
how valuable their products are to the people who buy them,
things like that.
The jury is an Anglo-Saxon creation
and you don't see juries in continental Europe.
Why have jury trials survived?
And do you think the institution works?
I think that there's something appealing to Americans
about the idea that any one of us can be the decider
of whether conduct was right or wrong.
I think people like the idea of participating
in those types of decisions.
In Europe, those decisions are all made by the judges
and by the regulatory state.
Which is a different way of approaching responsibility
than many Americans take.
In French trials, the judge is not an independent actor,
but instead is also responsible for fact finding.
What do you make of that?
Well, I would think that the French judges would tell you
that they view themselves as both a fact finder
and an independent party.
They're not on one side or the other.
The American judges, generally speaking,
are not the fact finders.
Their job is to decide what the law is,
to allow the jury to decide which set of facts
are more persuasive to them
and then to apply those facts to the elements of the law.
And the Volkswagen clean diesel case,
maybe a French judge would say,
I don't think that Volkswagen did anything wrong
when they designed the software to fool the regulators
because the regulator should have caught it.
In the United States, an American judge would have no role
in that determination at all.
It doesn't matter whether the judge thinks
that Volkswagen cheated or didn't cheat.
All that judge is doing is giving the jury the opportunity
to decide based on what was presented at the trial,
which set of facts is more persuasive.
And then the judge is bound factually
by what the jury determines.
Are there any legal limitations on damage awards?
You're talking about punitive damages.
The Supreme Court actually hasn't put a definitive ceiling
on the multiplier that a jury can apply
to compensatory damages to determine punitive damages.
I believe there's a BMW case from years ago
where the Supreme Court said that generally speaking,
the punitive damages shouldn't be more than 10.
The size of the punitive award also is dependent upon
the relative size of the compensatory award.
Part of punitive damages is to create a deterrent
for future bad conduct.
So if you have a punitive damages finding of $10,000
for a company like 3M, a Proctor and Gamble,
that's not a deterrent.
So punitive damages to be able to serve
their deterrence function have to be very large.
Why is tort reform partisan?
Very broadly speaking, the Chamber of Commerce,
which represents a very large percentage
of the biggest corporations in the United States,
takes positions on tort reform and on judicial issues
that are favorable to its corporate clients.
The Chamber and its constituents generally try to make
it more difficult for us to be able to certify class actions.
They try to make it more difficult for us
to get punitive damage awards.
They try to make punitive damage awards smaller.
They try to create more obstacles for plaintiffs
in civil litigation against big companies.
They're very goal oriented.
It's much harder now to certify classes
than it was 20 years ago,
largely because of restrictions that were imposed
as a result of corporations and the Chamber.
Courts have obviously accepted them,
but a lot of those restrictions are not beneficial
to consumers or to people who are ripped off
by these companies.
One example, the Chamber was a big supporter of
is the idea that arbitration is better than litigation.
In 2012, the United States Supreme Court said it was okay
for a corporation to force consumers
to arbitrate their claims for the corporation's bad behavior
rather than allow them to go to trial.
That type of forced arbitration has resulted
in many corporations effectively getting immunity
for bad behavior because it takes a lot of resources
for a consumer to pursue a large company
for ripping them off.
And most people won't do that.
So they're no longer in a class
and you have to arbitrate individually?
Exactly.
You're forced to arbitrate individually
because not only are there forced arbitration provisions,
there also are related class action prohibitions
in the consumer contracts.
When you signed up with us, it says very clearly
that all complaints have to go through mandatory arbitration
and there can't be a class action.
Many courts will in fact compel all of those claims
into arbitration.
Most people are not willing to hire lawyers
and spend their time to pursue $50 or a few hundred dollars
and very few lawyers are willing to spend their time
to pursue that amount of money.
So those claims just go away.
Judge Posner of the Seventh Circuit said something
to the effect of only a fool or a madman
will sue for $40.
The fiction that companies like AT&T maintain
is that arbitration is better for consumers
because it's so easy and so much quicker.
But the fact is that almost none of them
are willing to spend their time and money to do it.
Is there a legislative solution to that problem?
Yeah, absolutely.
There's been a bill that has been sitting around
for several years, I believe,
that's called the Arbitration Fairness Act.
But with this somewhat dysfunctional Congress
that we have is highly unlikely to pass,
but it would legislate no forced arbitration
or class action waivers in civil litigation.
How do you use mock jurors in your trial preparation?
It's always surprising what the mock jurors are focusing on.
That's why mock juries are such a valuable pretrial tool.
And you don't do just one.
You do multiples to try with different people.
If you have a good jury consultant,
they have ways of figuring out why they went one way
and said the other on issues.
One of the incredibly valuable aspects
of doing mock juries is that they crystallize
what your story should be.
They tell you, this is what we care about,
this is what we don't care about, this is what we liked,
this is what we don't like, this is the lawyer
that we really love, this is the lawyer that we hate.
It's also critical to have a good jury consultant
to help you draw mock juries that are somewhat similar
to the types of jury you're likely to have
in the forum where you're trying to case, right?
If our jury consultant just pulls random people
off the street of Manhattan,
but we're trying our case in West Texas,
that's not gonna be helpful.
When you do your mock trial,
someone has to represent the corporation on your staff.
And when you go to the real trial,
how similar are the arguments made
by the mock corporation versus yours?
The cases that get to trial, generally speaking,
have been going on for five years.
It's not a secret.
It's not litigation by surprise.
All of the arguments that the corporation
is making against us, they have repeatedly made against us
throughout the course of the litigation,
trying to kill the case.
They hadn't been successful, but over time we learn
these are their three strongest arguments.
When I watch a civil trial, they are very boring.
How do you keep the jurors awake?
A lot of civil trials are really boring,
especially some of the ones that involve technology
where you have to go into the detailed engineering,
specifications involved, jurors falsely during trials
all the time.
Sometimes judges fall asleep during trials.
Sometimes lawyers who are involved in the trial
fall asleep.
Trials can last for months when you have a judge
whose experience trying cases very often,
they will impose strict deadlines, strict time limits
on both sides to try to keep the trial moving along.
The very best trial lawyers are the ones who are able
to condense detailed information into sound bites
that are easily absorbed by the jurors.
You don't want to be the lawyer who's up there
droning on for six hours during your opening.
That's generally not an effective way to win.
Can jurors ask questions during the trial?
This really varies hugely state by state and court by court
and sometimes even judge by judge.
Some judges will allow jurors to ask questions
during the course of the trial.
Some judges will not allow jurors to ask questions
during the course of the trial,
but will allow them to ask questions after
all the evidences in.
Some judges won't allow jurors to ask any questions at all.
It's all over the place.
Sometimes jurors give their questions to the judge before
and then the judge reads them or the judge modifies them
to make them more neutral.
You don't want to have jurors cross examining witnesses
at the same time as the lawyers.
Do some jurors listen to what interests them
and then tune out the rest?
Most of us, probably not you,
but most of us only absorb part of what we're hearing
at any given time.
We're biased.
We focus on the things that are most interesting to us
and like our minds wander when people are talking about things
that are less important to us.
That's true of juries as well.
You're never gonna have a group of jurors
who all listen attentively 100% of the time
to all of the witnesses and all of the arguments
through a four week trial, let alone a four month trial.
Who would be willing to give up four months
to be a juror for a trial?
There have been for many years on television TV shows
that are focused on jury trials.
People think it's exciting to be in that situation
to be the decider.
I think a lot of people do take jury duty seriously,
the idea that they can decide whether someone
is guilty of murder or whether a company
has to pay a billion dollars or not,
but it's a very significant time investment,
especially in these big civil class action cases
where you frequently have trials
that go on for months at a time.
What is the role of jury consultants?
Jury consultants are involved not only in creating mock juries,
but they're also involved in the Vordier process
in the process where we choose a jury for trial.
And they say A, B, and C are hanging on every word,
D, E, F, and G don't give a shit what you're saying.
D and F seem to really like this argument
that the defendant's making,
they pay very close attention to how they're reacting.
And then we modify accordingly.
If it seems like after our opening
that the jury is not interested,
we try to change the narrative a little bit
to make it more exciting to get their attention.
With so much money on the line,
do lawyers break the law to win the case?
People will go to jail in that situation.
It is very unusual to encounter a lawyer
who even would be willing to lie in court, let alone,
try to influence jurors.
Ethics are a critical part of the legal practice
in this country.
There are so many documents involved in trials.
How do you go through them all?
Does AI help?
There are a giant number of documents involved
in all of our cases.
It's common to get literally millions of documents,
sometimes tens of millions of documents.
I think in opioids, there was something like 40 million
documents that were produced.
So there are tools that we have to help us
review those documents.
It's not realistically possible for human eyes
to read every single word in every single one
of 40 million documents.
Some of the tools are more effective than others.
Even with those tools frequently in big cases,
you have literally hundreds of lawyers
who are reviewing documents around the clock
for months at a time.
On the plaintiff's side, we use what's called
technology assisted review or TAR.
It's a system where you train a computer program
to recognize what constitutes a hot document.
So the system knows this document A is considered hot
and it has all of these words.
And this document B is considered not relevant
and it has these other words or these other characteristics.
You test the system, you give it an additional set
of documents and ask it to tell you which documents
are hot, which documents are responsive,
which documents are irrelevant.
And it gets graded based on its accuracy.
And then you go through another iteration of the training
and you keep going through a similar process
until you're happy with the results.
There's a tendency to wanting junior people
to be dealing with the documents in these cases,
so very frequently partners or even senior partners
need to get involved early in that process
to make sure that the interesting documents
that are being fed into the TAR system
actually are hot or irrelevant documents.
The system has no ability to make those calls on its own.
It's totally reliant on the training given to it
by the lawyers.
I met you at a parents reception
for my daughter, Hannah's kindergarten class.
That's right.
And our daughter Veronica was in her class.
I noticed by the way that you were very entrepreneurial.
The plaintiff's class action business is a very risky one.
We only get paid if our cases are successful.
We spend on average millions of dollars per case
and we have hundreds of cases going at any given time.
So if we choose our cases poorly or we do a bad job
litigating or we take dumb positions in our cases
or we're overly aggressive or not aggressive enough,
then we could end up doing very badly or even closing.
I mean, many plans firms don't stay open very long
because they bet big on the few cases and don't win.
We all have a lot riding on the results of our cases.
It really incentivizes us to get the best possible result
for our clients.
Why do these cases cost so much money?
Money has been in a variety of ways.
Having a law firm with offices is expensive.
Lawyer time is expensive.
And when cases go through the US civil justice system,
it's not super quick.
They take years.
So we're investing a lot of human labor and time into it.
We also have expert costs, which are enormous.
You could spend millions of dollars on experts pouring
through the code and figuring out what evidence there is.
So it's just a lot of work over a really long period of time.
And the companies that are on the other side
hire very good lawyers who spend a lot of time
in a lot of the company's money defending against the claims.
One of the things that I'm proud of at my firm
is how we are on the other side of literally
the best defense firms in the entire country,
if not the world, on a daily basis.
And we stand our ground and we very often win.
When you hire and evaluate new lawyers,
what traits do you look for in future partners?
We hire smart people from good schools.
And mostly they are technically good lawyers.
But what we're looking for people to stand out
is for them to be proactive in their cases.
It's very easy as a first or second year associate
to sit at your desk and wait to receive an assignment.
The most successful people are those who look at the case
from 30,000 feet and figure out, OK, this is what our case is
about.
They plan accordingly to make sure
that we're doing everything we can to maximize our position.
During the pandemic, you had to work with Zoom
instead of face-to-face meetings.
Did Zoom undermine trust between the parties?
During the heart of the pandemic, everything was virtual.
And in the cases that I work on,
there are very large stakes for both sides.
You need to establish a relationship of trust
with the lawyers on the other side.
It's not to say that you're ever going to agree
on all of the issues in the case.
That's virtually never going to happen.
But to be in a position where you're negotiating
hundreds of millions of dollars or billions of dollars,
you have to trust that the other side is going to act in good faith.
And they have to have that same trust in you.
That just doesn't happen when you're only seeing them by Zoom.
You have to be in person.
There's also a huge amount of communication information
that gets lost to both sides in Zoom.
It's hard to know sometimes when it's OK to speak in a group setting.
What are you optimistic about?
I'm optimistic about the ability of the civil justice system
to affect big changes in this country.
The opioids litigation is an example.
The regulators over many years were not
able to curb this bad behavior that resulted in so many people
suffering and dying.
Our litigation has succeeded where the regulators struggled to do so.
And what are you optimistic about related to juries?
I think juries will continue to be able to exert
near total control over the decision-making of the vast majority
of civil and criminal trials.
In this country, I don't think anyone, any politician from either side
is ever going to be willing to seriously curtail
the privileges that juries enjoy in this country.
Thanks, David.
I'd now like to welcome back the What Happens Next movie critic,
Darren Schwartz, whose previous career was in building sales teams
for companies I grew up on.
Darren, welcome back to the show.
Thank you, Larry.
Happy to be here.
This week's podcast is about juries.
And I thought, what could be better than a discussion with Darren
regarding the classic movie, 12 Angry Men?
Darren, I hope you did your homework.
Please open with a brief synopsis of the plot,
as many in our audience have not seen the film
or haven't seen it in years.
I watched it twice.
I did a little research.
And the quick summary is 12 Angry Men
is a 1957 film directed by Sidney Lumet
in his first movie feature.
And the film centers are on a murder case
where the evidence seems to overwhelmingly point
towards a guilty verdict.
But one man did not believe that that was the case.
So over the course of the film, the 12 jurors debate
whether there is guilt or reasonable doubt.
And in doing so, the film pointedly highlights
one of the cornerstone of our democracy,
which is that everyone is innocent until proven guilty,
and that guilt must be beyond a reasonable doubt.
Henry Fonda stars alongside Jack Klugman, Martin Balsam,
E. G. Marshall, and a powerhouse performance by Lee F. Cobb.
The film guarded Academy Award nominations
for Best Picture, Best Actor, Best
Endeptice Screenplay, Howard Dinnott-Winner, and the film
is also consistently ranked as Henry Fonda's best performance.
This is a felony murder case where a boy is accused
of murdering his father with a knife.
A similar knife was acquired by the boy earlier that day.
A neighbor witnesses the killing.
And an old man who lived in the apartment below
saw the boy running out of the apartment building
immediately after the body hit the floor.
It seems like a slam dunk case until Henry Fonda
starts making mincemeat of the prosecution's evidence.
Tell us what happened in the jury room.
They all walk in and they think this kid's guilty.
They're in a rush to justice, which is to convict this kid.
And Henry Fonda does not believe that that's the case.
The first thing they do is say, hey, let's custom area.
Let's just take a vote right now.
And they go around and they're one, two, three, four, five,
six, seven, all guilty, nine, 10, 11, 12,
say all guilty and they say, okay, who's for not guilty
and Henry Fonda raised his hand?
And everyone knows that he, wait a second.
This is not gonna be as easy as we thought.
Retired federal appellate judge, Richard Posner,
wrote a book entitled Law and Literature.
And in the book, he highlights the benefit of fiction
to understand the complexity of the law and its nuances.
Here the film allows us to get into the inner workings
of the jury deliberation process.
What do you make of Henry Fonda as jury number eight,
making the decision to vote not guilty?
Well, I think it was courageous and it was somebody
standing up for what they believe is right.
These were 12 angry men.
And ultimately it showed that inside of each of them,
there was the kind of person that could get to the truth,
but none of them were as strong as Henry Fonda was
because none of them were willing to take that initial stand.
Sometimes it just takes one person
and that courage was important.
The jury deliberations take a turn during the discussion
about the murder weapon.
Tell us about the knife.
This was said to be a very unique switch knife.
They called it a switch knife,
which I thought it was switchblade,
but in 1957 I guess it was a switch knife.
And it had kind of a decorative handle
and they talked to the shop owner
where it was sold to the defendant who said,
this is one of a kind, I've never seen this before.
And they brought that knife in
and one of the other jurors took it
and put it into the table right in front of Henry Fonda,
which was very dramatic
and just kind of stuck upright at the table.
And after some conversation
and after the other jurors were committed to,
this is a one of a kind switch knife,
Henry Fonda opened his pocket,
picked out at the same exact switch knife,
slammed it into the wood,
sticking up right next to the other one.
And he said after court the day prior,
he had walked around at night
and at a local shop near where the defendant lived
was able to buy the same exact one.
And that was enough to then sway one juror.
What Henry Fonda did at that point,
which I thought was also extremely strategic,
is he said, I wanna take a secret ballot now and vote.
And he got the one other not guilty
and he began his process of gaining momentum.
Being a juror is burdensome.
The jurors did not wanna deliberate.
They wanted to go home, get back to work
or go to the Yankees game.
Most of the jurors were convinced that the boy was guilty
and did not want to indulge Henry Fonda
as juror number eight with a lengthy discussion.
One of the things that was consistent
with some of the jurors throughout was discrimination.
The cultural background of the defendant,
he was from a slum, juror 10,
and Begley was just a straight up racist.
And no matter what was said, he went in there thinking,
I don't like this kind of person.
The other challenge is that justice comes at a price,
which is time and effort and consideration.
And the realization is that you have to give back,
you have to participate fully in this process
because one day it might be you on the stand.
And most of those people did not have that perspective.
And it took Henry Fonda as juror number eight
to say, wait a second, we need to really consider the facts.
And eventually people were saying,
a man's life here is at stake, we need to do the right thing.
But to begin with, it was just one guy.
The movie takes place in 1950s, New York City
and Manhattan at that time was predominantly white.
That said, the jurors did not consider themselves
from the same ethnic group.
They differed by class, educational attainment,
occupation and ethnicity.
Some of the jurors were born in the US,
but there were a few immigrants
who were treated as outsiders.
I'm not sure that I will label this as racism
because every one of this jury was white.
Maybe we should just call it bigotry.
Yet there were members of the jury
who would not tolerate this behavior.
The Bill of Rights guarantees you a right to a jury trial,
and that allows the defendant to be judged by his peers.
Jack Klugman plays a juror who grew up in the slums
and provides valuable insights to this case.
It was amazing the way that they did that.
The Jack Klugman part,
where he is the one that grew up in the slum
and he knew how to use a switch knife,
was also kind of funny because I only know Jack Klugman
as Oscar from the odd couple.
I loved him in Quincy.
He was saying, yeah, I grew up
and I would see people having a knife fight.
It was like so cavalier, like, is it a knife fight?
And horribly with blood and stitches.
So it was like not a big thing.
Yeah, it's a knife fight today.
But every character was open to have evidence and arguments
that fit with them.
Henry Fonda was so good at breaking down each piece of evidence
and figuring out what was important.
He was one man to start.
But as he went along, each juror that came along with him
brought that unique perspective,
starting with the old man who said didn't he walk with a lip.
So I think that different perspectives are critical.
I was called for jury duty in 1995
when I lived in New York City.
And I joined the jury pool in the center street courthouse,
which is the same court building in the film, 12 Angry Men.
But I found fascinating was that the jury pool was a cross-section
of New York City in every dimension,
race, class, education, immigrants, everything imaginable.
It was like being at the DMV.
In my professional career,
working at Salomon Brothers and proprietary trading companies,
I worked with various people with different upbringings
from around the world, but they were very similar.
Darren, you worked in sales and had to deal with all kinds of people.
How do you influence people to do things
who are so different from you?
Well, first of all, I appreciate you categorizing salespeople
as people that you'd see at the DMV,
which in itself is outrageous.
And proves that you yourself have interacted
with a very limited group of people.
So this is probably more about you.
I am a little more comfortable with the every man.
And I think as it relates to building,
whether it's a sales team or building business,
it doesn't matter where you come from,
your racial background, your social economic background,
your age.
What matters is if you can do what you need to do,
which is learn about people, explain value,
find out what people need,
and ultimately manage your emotions.
And to a larger extent also,
which people don't really understand about sometimes.
Sales would be creative and be nimble on your feet.
And that to me is one of the things that Henry Fodden did
in this movie is he was able to kind of jump around
and address the individual needs of the jurors
as he got people to come over and believe
that there was reasonable doubt.
Do you think the jury would have benefited
from having some younger people on it?
I don't know.
I think today, yeah, I just can't wrap my head around
what a 21 year old was like back then.
And it seems like young people
were a little more polite back then,
you know, or a little more respectful of seniority.
So maybe, maybe not.
When I was growing up, I called my friends' parents,
Mr. and Mrs.
And all my kids' friends call me Darren.
I was okay with that.
Do your kids' friends call you Mr. Bernstein or Larry?
You're right.
Most kids call me Larry or LB.
I can't imagine calling you Mr. Schwartz, Darren.
I just can't.
I can't do it.
I don't think that my kids call any of their friends' parents,
Mr. and Mrs.
I think they call them by their first names.
Maybe just because we want to be cool with our kids,
who knows?
But I'm going to actually try to institutionalize
from now on being called Sir.
And I'll let you know how that goes.
Bye everybody, including you.
Sir, as a follow up?
Yes.
In my family, there is a reticence
to watch black and white movies.
My wife refuses outright.
And I've had no success with my son.
When he was 11 years old,
I wanted to watch with him the movie First Blood,
starring Sylvester Stallone as Rambo.
My son said, Dad, is this movie in black and white?
I said, no, it's not, it's in color.
Are you sure?
Yeah, I'm sure.
It's a recent film.
How recent?
Early 80s.
They didn't have black and white films then?
No, it was color.
I had to negotiate.
He agreed to watch the first five minutes,
and then he would reevaluate watching the balance.
When we finished watching the movie, I asked my son
what he thought of it, and he said,
all Rambo wanted was a sandwich.
If they had just given it to him,
a lot of lives would have been saved.
Darren, how do you explain the reluctance
to watch classic black and white movies?
I think people like what's new.
This movie in particular is a slow burn.
And I just don't think that that fits in
today's attention span.
I myself am reluctant to watch a black and white movie
because you also realize it's going to be dated.
I think it's fair to have that stigma,
but at the same time, if you watch the right movie,
it can be really delightful.
I think this was clearly my favorite black and white movie
now, and it's definitely one of my top 10 favorites
of all time.
Going back to the plot of 12 Angry Men,
I thought it was interesting that when the jury adjourned
to deliberate that there were no rules or guidelines
on how the jury would reach its verdict.
There were guardrails like, what questions
they could ask the judge, or what evidence
they could examine, but choosing the foreman,
who gets to speak, whether it'll be secret ballots,
that was up to the jury.
How do people work together to interact
in an environment without former rules?
I wanna say that there are no rules.
It's not a micromanage process.
You're not getting a step-by-step playbook.
You are on a jury, you get instructions from the judge,
you hear all the evidence, you go into the jury room
and they lock in and you figure it out.
So to me, there are rules.
They're just high-level rules.
I think the lesson to me is sometimes
when you micromanage, you're not gonna get the right results.
You're gonna get resentment, and you're gonna get people
who aren't thinking about the end in mind.
And that is 100% true for sales teams.
When you don't give humans the ability to express
and experiment and interact in a way that they want to,
they feel natural, then you're not gonna get the right results.
And throw them into this kind of like big kettle
and they hopefully can figure it out.
And that's what our justice system is counting on.
I actually just got called for jury duty, ironically, in May.
So I'm gonna need a note from you to excuse me, hopefully.
By the way, I'm actually excited to do it
based on this experience.
Watching 12 Angry Men,
did it give you more confidence in the jury system?
I think that it gave me more of an education
as to what goes on in a jury room,
because I've had jury duty before I was not selected.
Very disappointing.
I'm not sure what happened there.
Hoping for better result in May.
This movie is 65 years old.
Isn't that unbelievable?
There were some funny lines that were said.
The advertising guy goes,
let's throw it down to the stoop
and see if the cat licks it up.
I didn't even know what that means,
but I'm committed to using that today with somebody.
Let's run it up the flagpole and see if anyone's filutes it.
It's as plain as the nose on your face.
And one of my favorite is,
I'm getting tired of all this yikitty yak,
which I think that stands a test of time no matter
where you are.
Oh, and the other thing is,
one point, Jack Ward in jury seven,
he was standing by the window, they opened the window.
How hot was that room?
Everybody was pouring sweat, except for juror four.
The window's over, he takes out a piece of gun,
throws it in his mouth,
and he takes the wrap or throws it out the window.
You can't do that.
You're canceled immediately now.
You'd litter it is over.
And then he was great.
Also, he was talking to Henry Fonda,
and he goes, I made 27 grand last year,
selling Marmalade.
Went pretty good, you know, for Marmalade.
So I looked at how much using 27 grand in 1957
is worth today, $29,000, which is a lot.
Which was a lot for selling Marmalade.
Sales isn't that bad, huh?
Right.
I thought it was interesting that the jurors got so angry
that it looked like somebody was gonna throw a punch or worse.
The juror who was working class did not like the way Lee Cobb
was speaking to an old man on the jury,
and he physically threatened him.
Oh, that was great.
I thought it was also another line that was anachronistic.
You do that again, I'm gonna lay out.
You called it one of the 10 best films you've ever seen,
but it doesn't even win best picture.
How is that possible, Darren?
Well, I'm not gonna be subject to other people's opinion.
The whole movie is filmed in one little jury room
with a bare-boned set, a table, a dozen chairs,
a couple of windows, a fan, and a light.
That's it.
The focus is on the words.
It's like a talky film.
There's little action except when the guys get hot
about analyzing the evidence.
This is Sidney Lumet's directorial film debut.
He becomes one of the biggest directors in Hollywood.
He made lots of movies, including network,
cervical, and dog day afternoon.
He wrote a book entitled Making Movies,
which describes how to direct films.
Lumet explains that in the production of 12 Angry Men,
in the first third of the film,
the camera is used at the same level as the characters.
In the second third, the camera is filmed from above,
pointing down to the characters that gives an uneasy feeling
that the jury room is collapsing in on them.
And then in the final third, the camera is filmed from below
that makes it seem that things are looking up.
What do you think about the camera positioning
in the film direction?
I thought it was brilliant, and I noticed it
as I was watching it, and then I also did some red up
on the production and noticed that as well.
It was close up, and you saw the beads of sweat on their face,
and their shirts drenched.
I thought it was really impactful.
Being in one room, this claustrophobic feeling,
with all the tension building up,
there's a few movies that I remember that were in one room.
I remember when I first saw Breakfast Club when I was 14.
I didn't like it because it was in just one room,
and it's just the characters to carry the movie.
How about Misery with James Kahn and Kathy Bates?
That was set in a single room, and that was upsetting.
Rear window, yeah, and it was a couple of years
before this, I think.
Should our podcast listeners go to Netflix
and watch 12 Angry Men for the first time, or re-watch it?
If you're interested in the justice system,
technology changes and culturally things change,
but the justice system is largely,
is one of the most unchanged things in the world,
because it's a cornerstone of our democracy.
So I think that's a very interesting commentary
on us as a country in our legal system.
Next topic is persuading an audience.
Henry Fonda does the soft sell.
Yeah.
Tell me about that.
Well, he knew that he was up against 11 other jurors
who were more than happy to find the kid guilty
and just get back to their lives.
And no time did he ever proclaim
that he knew the kid was innocent.
That was a big distinction.
You don't have to be found innocent.
You have to be found guilty beyond a reasonable doubt.
So he fought against the group,
not by trying to convince everyone
with a big sweeping presentation or explanation,
but by breaking down each critical point in the case
and going over it in meticulous detail.
And as he did that, he was able to pick off a few jurors
at a time based on different evidentiary pieces,
and bring them to accept this perspective
that there was reasonable doubt.
Ciaran, what are you optimistic about regarding juries?
Well, I'm optimistic because I've jury duty in May.
I now know that like Martin Balsam
would be an excellent candidate to be a foreman.
I'm gonna do my best to learn from Henry Fonda
and to go into this jury duty date
and make it clear to the judge, your honor, I'm the guy.
Pick me and see where it goes.
How do you like being the movie critic
on this podcast, what happens next?
And are you taking this responsibility seriously?
I am, Larry.
I mean, I watched the movie at least two and a half times.
I found the original 1957 review.
I'm at worst in no way qualified to do this.
And at best, maybe qualified to do it
until someone better comes along.
I mean, I'm a position holder at this point.
I'm shocked that you're even allowing me to do this,
but I also think that it's good for you
to be able to experience this time with me.
Thanks so much, Semenali, Gary, David, and Darren
for joining us today.
If you missed last week's show, check it out.
The topic was Prince Harry, the spare.
Our speaker was Tina Brown, who discussed her new book,
The Palace Papers, Inside the House of Windsor,
The Truth and the Turmoil.
Tina is the former editor of The New Yorker
and Vanity Fair.
Tina explained why the public is so fascinated
with the royal family and the continuing deterioration
of Prince Harry's relationship with his brother, William.
Why Harry decided to give up his royal responsibilities
and why she believes that the monarchy
will survive and prosper.
I would now like to make a plug for next week's show
on how diversity, equity, and inclusion is under attack.
The first speaker will be Jay Green
from the Heritage Foundation, who will discuss
Florida Governor DeSantis' challenge
to the DEI bureaucracy in Florida's public universities.
Our second speaker will be Dr. Stanley Goldfarb,
who runs a new thing tank called Do No Harm.
Stanley is the former associate dean
at the University of Pennsylvania Medical School
and the author of Take To Aspirin and Calm Me My Pronouns.
Why Turning Doctors Into Social Justice Warriors
is Destroying American Medicine.
Stanley discussed how DEI is impacting medical schools,
medical residencies, medical research, and medical care.
You can find our previous episodes and transcripts
on our website, what happens next in six minutes.com.
If you enjoyed today's podcast,
please subscribe to our weekly emails
and follow us on Apple Podcasts or Spotify.
I would like to thank our audience
for your continued engagement with these important issues.
Goodbye.
.