January 08, 2019

THE JURY CRISIS is subtitled “What’s Wrong With Jury Trials and How Can We Save Them.”  Yet the value of this book is not in its assessment of anything “wrong” with jury trials but instead in its deep and rich understanding of how jurors [and judges] make decisions and what advocates can do with that knowledge.  In that regard, this may be the most important book any trial lawyer can read.

The book’s initial premise, a not-surprising one, is that jurors are not automatons who can set aside biases and preconceptions and follow the directions to (1) make no decision until the end of the presentation of proof and (2) set aside personal predilections and beliefs.  Instead, two things occur – they reframe the proof into familiar story formats and they form initial – and strong – beliefs as to what the outcome should be early in the process.

For the trial advocate, nothing in this book is more important than the chapters on the importance of story-telling.  Dr. Sherrod, a psychologist, tracks the latest research and shows convincingly that the best presentation of evidence is a narrative, as it increases memory of essential facts as the trial progresses, permits the early shaping of belief, and increases the proportion of final verdicts that conform with that early impression.  Data are drawn from research and his own consulting work, as well as the pioneering research of Daniel Kahnemann and the phenomena of thinking fast versus thinking slow.

Consider these examples:

  • When mock jurors received a prosecution story in the form of a narrative and a defense case summarized witness by witness, 78% favored the state; but when the presentation modes were reversed, only 31% favored the government.
  • Once jurors assign a story framework to a case, they not only seize upon facts that conform to their preferred version but often invent additional facts to explain conduct or otherwise complete the story.

Sherrod goes on to apply these and similar findings to a retasking of the void dire process, making it a search for jurors whose stories will come closest to that of the party; the role of the “majority story” in jury deliberations; and to understanding the susceptibility of judges sitting as fact-finders to undertake the same story-based decision process. The latter is particularly well-documented – Sherrod hired retired judges to ‘preside’ in a series of mock cases, assessing their judgments at various stages and putting to rest any notion that judges are somehow ‘above the facts and emotions’ when making decisions.

One need not conclude that there is a crisis in the jury system to appreciate this book; but what it does prove is that there is a crisis in comprehending the jury and judicial processes that make significant if not life-consequential decisions every day.  Reading this book – or, rather, studying and applying its precepts – is essential to remedying that problem.  Put simply, if you are a trial lawyer you can’t ignore THE JURY CRISIS.



THE JURY CRISIS: By Drury Sherrod (Rowman & Littlefield, 2019)