• April 11, 2014

A standard jury instruction used in Minnesota goes like this:

You must not allow sympathy, prejudice, or emotion to influence your verdict.  The quality of your service will be reflected in the verdict you return to this court.  A just and proper verdict contributes to the administration of justice.

Minn. Civil Jury Instruction Guide, 10.45.

Reflect on that.

Our legal system is a massive edifice built on top of a gaping void penetrating to its very core.

Our legal system rests on fundamental split between its prescribed decision-making process (rational decision making stripped of all “sympathy, prejudice, or emotion”) and its deciders (human beings). Almost all people are as incapable of pure rationality stripped of sympathy, prejudice, and emotion, as they are incapable of invisibility, immortality, or telekinesis. We all recognize this except for the psychopaths, sociopaths, and others among us (a very small percentage in total) who are devoid of basic human qualities of “emotions,” “feelings,” “empathy,” and/or “sympathy,” and/or self-awareness.

But what is the legal system to do? We aspire to rationality. We seek to minimize arbitrariness, irrationality, prejudice, and so on in our justice system. And so, as with many human shortcomings and human devised institutions or systems, our goal is not to eliminate inherent risks but to minimize them.

I am just disappointed that our state’s pattern jury instruction is so facially untenable and even perhaps ridiculous. I am not sure it matters because juries do what they do but, for the integrity of the system, I would propose a slight revision in light of the recognition that feelings and emotions are not “toggle switches” that we can ask juries to turn off.

Here is my proposed alternative formulation:

Your verdict should not be the result of any feelings of sympathy you might have, any prejudices that you might have, or the result of your emotions uninfluenced by the facts and the law.  Your verdict must be based on the facts that you have found through listening to and seeing evidence in this case. And your verdict must be based on the court’s instructions to you as to the applicable law.  The quality of your service will be reflected in the verdict you return to this court.  A just and proper verdict contributes to the administration of justice.

Finally, this post was prompted by an important recent case decided by the U.S. Court of Appeals for the 8th Circuit in which a plaintiff in a case of alleged sexual harassment would a large six-figure jury verdict, only to be thrown out by the 8th Circuit for improper argument by plaintiff’s counsel.

This is a critical decision that trial lawyers should heed because the reversal here is a devastating outcome.

The last line of the opinion (authored by U.S. Court of Appeals Judge James B. Loken, and joined by Judges Riley and Wollman) is notable: “when a lawyer departs from the path of legitimate argument, [s]he does so at [her] own peril and that of [her] client.”

Make a note of it: court of appeals judges blaze “the path of legitimate argument.”

The U.S. Court of Appeals for the 8th Circuit threw out a jury verdict against an employer, Mr. Joseph Strub (pictured below), who, the evidence showed, told an employee in front of the entire staff of the business that, if she wanted a raise, she should “take out [her] teeth, come into my office, and shut the door.”

Joseph Strub

Joseph Strub

Would the Court of Appeals have ruled otherwise with a different panel of judges? With a panel of judges whose lives and experience were more similar to the plaintiff’s?

The verdict, the judges found, was tainted by “the timing and emotional nature of counsel’s improper and repeated personal vouching for her client, using direct references to facts not in evidence, combined with the critical importance of [Plaintiff’s] credibility to issues of both liability and damages….”

What really influenced the jury or the judges, for that matter, is forever unknowable but this is, regardless, an extremely important lesson for Minnesota trial lawyers.

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