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Perception versus Reality: the jury can't hear everything

NUI v. Ark.jpg

I caught a lucky break last weekend when one of my college roommates at the SAE house put his Razorback tickets up on Facebook. He has an infant and won't be making many games this year. We planned on going to Fayetteville for the game, so I stopped in Little Rock and got his tickets. To the delight of my son and I, the tickets were front row south end zone seats. Great seats for a great game. The Hogs capped off a dominating performance against Northern Illinois with a touchdown sprint by Korliss Marshall late in the 4th quarter. This happened right in front of our seats, and my whole family could have reached out and touched the players. The photo is a screen grab from the ESPNU coverage of the game.

My oldest son's perception of what it means to go to a Razorback game is forever changed. At 6, he'll probably always remember that moment on the front row. (My earliest memory of a game is from the age of about 4, most of the way up the grandstands. I was terrified of Big Red, the mascot.) In reality, it is rare to have those types of seats, even for big boosters. As I said before, I simply got lucky. (So did my friend — they volunteered to change seats when the south end zone seats were installed.)

Perception versus reality has its place in the courtroom, and juror feedback is a great thing for identifying the difference between the two. I've tried cases in three states in both federal and state court. Every judge does something a little differently about talking to the jury. Many times, juror feedback is limited by the Court. For example, in most federal courts, the judge won't permit any contact with jurors until after any appeals are finalized, and then only if the juror puts his or her name on a list. In state court in Arkansas and Texas, the custom is for the judge to tell jurors that want to discuss the case with the attorneys to leave through the courtroom; other jurors go out a different door.

After unfavorable jury verdicts (which any plaintiff's lawyer who tries many cases have had), jurors almost always report that they would have liked to see more information — more medical records, more tax returns, any information about car or health insurance, more witnesses from different parts of life. Courts have limited resources, and so attorneys must make choices about what evidence to present to the jury within a limited time frame. Attorneys for injury victims also can't present any evidence relating to insurance, which is a law we believe should be changed. This is the case even when the defendant has insurance to pay any judgment, or the medical bills actually paid by health insurance are far less than the rate charged by a hospital.

So the reality is that people have many more medical records and witnesses than could ever be presented to tell a complete story of a life-changing event. Court rules also limit what types of evidence can be shown to the jury. So, the jury's perception is shaped by constraints on time and by laws created by lobbyists to limit references to insurance and other matters that almost always interest the jury.

If you were on a jury, how would you handle the difference between perception and reality? How would you want an attorney to explain the difference to you?