Super Lawyers
William C. Altreuter
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Wednesday, March 18, 2009

I suppose that fake trend stories are such a journalistic staple that they should simply pass without comment, but the notion that the "use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges" is something new is too stupid to let pass.

In a way what the story illustrates is the shocking lack of valid social science research into our glamor profession. Although there are statistics that track some data about the courts mostly these concern gross numbers: cases in, cases disposed of. About as fine grained as it gets is whether a disposition was by verdict, on motion, or "other"-- usually settlements, by far the greatest number. Are there actually more mistrials being declared because jurors are using their phones to look stuff up on the internet? Actually, the story doesn't say. It's all anecdote. And when you think about it, are the anecdotes any different from what Henry Fonda does in "12 Angry Men"?

It's too bad that we are more scientific about our jurisprudence, because I'll bet the system would benefit from a closer study of what we do, how what we do affects outcomes, and the relative costs associated with our activities. Since the discovery process is my big academic interest I've been looking for some sort of reliable numbers about the costs of discovery, for example. What I have been able to find has not been anything that impresses me as methodologically valid-- mostly a lot of insurance industry numbers that seem tailored to create the impression that the insurance industry is beleaguered.

Judges give instructions about what jurors can consider. In my experience jurors take those instructions pretty seriously. Are there slip-ups? Hell yeah. Have smartphones increased the incidence of juror misconduct? Couldn't tell you. My hunch is not, but I'm not seeing any headlines out of that, and my hunch is every bit as anecdotal as John Schwartz' story. The Times found four instances of smartphone related juror misconduct. Three is traditional if you want to declare a trend, and in a pinch two will do.

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