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APRIL 2013 NEWSLETTER - Cohen Article
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Communication and Trial Practice Tips for the Woman Lawyer

 by Cynthia Cohen, Ph.D.

Apple v. Samsung Example. The Apple v. Samsung verdict dealt with infringement of Apple’s iPhone by Samsung’s Galaxy’s phone. A California jury returned a verdict in favor of Apple for Samsung’s infringement and dilution of a range of patents and trade dresses. The jury verdict put Samsung on the hook for $1 billion. Samsung’s motion for a new trial claiming juror misconduct by the foreperson was denied.
From Apple v. Samsung jurors’ media interviews, we learned about their decision-making process, especially the talkative foreperson. Samsung claimed that Mr. Velvin Hogan, the foreperson, improperly presented extraneous prejudicial information during deliberations. Mr. Hogan told the media, he had an “aha, moment” about Apple’s patent while reflecting at home the first evening of deliberations. Imagining himself in the shoes of the patent holder, he decided to support Apple’s patent. The next day Mr. Hogan laid out his perspective for the rest of the jurors. During jury deliberations, there was no extraneous information searched. There were no Google searches, no dictionaries, no encyclopedias, no extraneous knowledge of other cases from these two parties and no communication about premature decision-making.
What is Juror Bias? Juror bias is the predisposition to favor a party or an issue. Was there juror bias in this Apple v. Samsung case? Absolutely. Was it juror misconduct? According to U.S. District Judge Lucy H. Koh, it was not. In Federal Court, despite statements made post verdict, jurors cannot impeach themselves as to the mental processes in decision-making. While the foreperson was biased, the threshold for misconduct was not met. Judge Koh says, “Jurors are expected to bring their own personal experiences with them into the courtroom, and may generally rely on their personal knowledge or past experiences when hearing the evidence, deliberating, and deciding their verdict so long as they do not have knowledge related to the specific case they are deciding.”
What is Juror Misconduct? Juror misconduct occurs when the jurors introduce extraneous evidence into deliberations or communicate with a party during trial. In Twelve Angry Men, Henry Fonda’s character introduces a replica of the knife used in the murder of the defendant’s father. While the movie glorifies the deliberation process in setting an innocent man free, the outside evidence triggers juror misconduct. Juror misconduct is more visible today since jurors often reveal themselves through social media or traditional media interviews.
Stealth Jurors. Jurors who hide their bias to remain on the jury are known as stealth jurors. A stealth juror, like Nicholas Easter in Runaway Jury, knowingly stays undercover to manipulate a result for a particular cause. Samsung claimed that Hogan lied in order to obtain a seat on the jury and that he inappropriately introduced extraneous prejudicial information into jury deliberations. We may never know whether Mr. Hogan forgot about his earlier lawsuit, attempted to conceal it, or believed his response regarding his more recent lawsuit with his programmer was sufficient for voir dire. Hogan mentioned a bankruptcy and Apple claims if Samsung timely obtained his file, Samsung would have known about Hogan’s prior lawsuit while the trial was in progress, not after there was a verdict against them.
Trial Practice Tips. Prior experience is the biggest predictor for jurors’ bias in any case. The closer the juror’s experience to the epicenter of the case, the stronger the bias. There are several lessons learned from this case about social desirability characteristics, flushing out stealth jurors, and asking follow up questions during voir dire. Trial practice tips to consider in your next trial include:
· Scientific Jury Research. Scientific jury research reveals predictors about experiences at the epicenter of the case that indicate preference for the plaintiff or for the defense.
· Jury Questionnaires. A jury questionnaire elicits personal information and red flags. Avoid exposing red flags in open court that will bias other jurors. Learn more about answers marked private at sidebar.
· Voir Dire.Use time wisely with follow up questions. A simple, “Anything else?” may trigger additional responses. When you learn about a critical experience such as a bankruptcy, let jurors know that judges allow you to check records. They may be more forthcoming during voir dire.
· Detecting Social Desirability Characteristics. Judges rehabilitate biased jurors as the presence of the black robe often makes jurors say they will be fair. There are biased jurors who may believe as the foreperson in Apple v. Samsung that they are trying to do the right thing for the industry. Ask jurors why they want to sit on this case.
· Detecting Lying Behavior in Stealth Jurors. Pay attention to jurors’ emotions and body language while answering in voir dire. Stealth jurors may be strategic in withholding information or outright lying about their experiences or attitudes. Probe further on related experiences or leadership positions if you suspect a stealth juror.
· Court Instructions on Social Media Use. With the increase of smart phones, notebooks, and laptops, jury misconduct falls into two major categories – extraneous information introduced into deliberations or jurors communicating about the case during trial. Court instructions on banning Google searches and communicating online must be repeated. Give jurors parameters of what is allowed regarding social media use and ask jurors to sign a pledge to stick to it for the duration of the trial.
· Obligation to Investigate Jurors. If there are matters that need further investigation such as looking at jurors’ personal involvement in lawsuits, complete due diligence immediately and disclose to the Court. Remaining silent on an issue and complaining that the verdict was prejudicially influenced by that misconduct is viewed as gambling on the verdict.
· Post Verdict Jury Interviews. Listen carefully in jury interviews for extraneous information brought into the jury room. Bias exists in everyone and learning about the deliberation process assists in presenting at the next trial.

WLALA Member Cynthia Cohen specializes injury research, trial strategies, and settlement decision-making at Verdict Success. Dr. Cohen can be reached at 310-545-7914 or