Friday, October 31, 2008

On facilitating a jury's deliberations, and more

As I've described in past blog posts, I love to facilitate group sessions of all sorts of types. Earlier this week, I found myself in the unusual position of facilitating a very important group session in a building designed by none other than Frank Lloyd Wright and in the role of jury foreman.

I've served on a jury before, but never as a jury foreman. And I hesitated a little bit when my fellow jurors quickly asked me to be their foreman (or presiding juror, as they are sometimes called here in the U.S.), because the task before us -- placing monetary value on the plaintiff's past and future medical expenses, past and future loss of income, and past and future "pain and suffering" was going to be challenging, even more challenging than we all knew at the time of making this initial decision. But it was because it was going to be challenging, and because I knew of the importance of a good facilitator to this process, that I agreed to take on the role. And I'm glad I did so. Our work was intense, with lots of differing viewpoints among the jurors, but we finished our job in a single day, much to the surprise of us all.

I learned a lot during this trial, particularly about the spine and spinal surgery and various approaches to pain management. My university human anatomy and physiology instructors of years ago were pitiful in comparison to the lawyers and surgeons and other medical experts we heard from over a two week period.

But there were things that happened during the trial that were very dumb. Perhaps I should say that there were things that should have happened during the trial that didn't, and possibly never would in this type of judicial system.

One of the problems was that we, the jurors, were not permitted to ask questions of the witnesses. Of course, we didn't expect to be able to ask questions of the witnesses. But most of us wanted to be able to do so, as there were questions that needed to be asked that weren't, and questions that were answered in ways that were less than clear. Could a means be devised via which jurors could ask questions in a way that wouldn't create a big mess? I think so, but I won't dwell on this issue, since it is minor compared to others.

A bigger problem was that none of the reports prepared by the medical experts, the economists, and others documenting the process and results of medical exams, extensive and rather complicated present-day-value calculations, and more were made available to us during our deliberations. Those reports contained critical information on which we should have been basing some of our decisions, but our access to them was denied.

We watched as all of the reports were tagged as official exhibits during the trial. This led all of us to believe that we would have full access to these reports during our deliberations. However, as we learned at the start of those deliberations, none of the reports had been submitted as official evidence, and only official evidence was available to us in the jury room.

Now that would have been OK -- well, somewhat OK -- had we known this during the trial. Why did they not tell us this? We all would then have been much more diligent about writing down the contents of those reports, much of which had been fully displayed to us on a large screen or on large boards during the testimony of those who prepared the reports (not that we were given enough time to write down everything of importance, but...).

Some of the contents of those reports -- contents that were read aloud by witnesses -- were indirectly available to us in the jury room. Access to those contents required asking the judge to have a court reporter join us to read aloud from the court transcript as we listened in silence. But we were told that our requests had to be very precise; if a requested portion wasn't what we were looking for, we'd need to submit further requests to the judge, as we were not to be permitted to interact with the court reporter in order to help him or her find the information we saught. Plus, we observed witnesses misstating report contents on some occasions; would we remember when this happened and have access to the accurate information via a juror's notes?

An even bigger problem lied in the inability of certain witnesses to interact about the case either prior to or during the trial. For example, the surgeon testifying for the defense was not permitted to interact with the surgeons testifying for the plaintiff. In my opinion, they were all highly competent and well-intentioned doctors. Interaction among them would have enabled them to discuss some very critical uncertainties that could have clarified the picture considerably; indeed, I would have loved to have facilitated that discussion! Instead, it was argued that we should make our judgments about what kinds and numbers of surgery, pain injections, therapy sessions, and more would be needed by the plaintiff over the course of her life by deciding which doctor's credentials appeared to be superior, or how likely it would be that a doctor brought into the process late in the game could really know enough or be telling the truth, or some other equally poor basis.

And then it was all handed over to be decided by a jury of twelve -- all equally well-intentioned, but probably none of whom really wanted to be there, none of whom was adequately paid for being there (only $15/day plus mileage, compared to, for example, the $9000 one witness was paid for half a day), and none of whom had enough of the expertise that really should have been applied to making these decisions. I'm very proud of what the jury did, the process we used, etc. But might there be a better way?

What might that better way involve? Oh, how about working together more, avoiding hand-offs, enabling decision makers to participate (effectively) in the process, providing access to needed data and rationale, etc. -- all things I would recommend and have recommended to be a part of most companies' "user experience" practice, management, and organizational strategy. Are they no less applicable in the U.S. judicial system?

A major theme reflected in contents of our upcoming January+February 2009 issue of interactions magazine is the need for companies to change their ways. As we grow very close to electing a president of the United States seemingly intent on making fundamental changes to the ways things are done in Washington, D.C., perhaps it is appropriate to consider extending that intent outward to the ways things are done in our courtrooms, by insurance companies, by legal teams, and by those whose lives are changed forever negatively, but unintentionally, by others.


A couple of additional notes...

I was intrigued by differences between the two lawyers' use of "technology" during the trial. The defendant's lawyer kept it simple, sticking only with writing on flipchart paper and showing us tables from reports (yes, those reports we were not later permitted to see) printed onto large sheets of foamcore (though still often printed too small to be easily readable by the jury). The plaintiff's lawyer, on the other hand, projected computer displays onto a large screen. He zoomed, and he animated, usually quite effectively (though sometimes he could not get the zoom function to work as he wanted). For awhile, he even got away with displaying claims during witness testimony that were not being made by the witness (I was surprised at how long it took for the defendant's attorney to voice an objection, which the judge quickly sustained).

I was also struck by the extent to which practice and "academic" research appear to be intertwined in the medical profession, at least at the level of those who testified during the trial. Sadly, in the world of "user experience" and HCI, we have a situation where many practitioners belittle "academic" research and researchers, and many "academic" researchers belittle practice and practitioners.

Lastly, on Facebook, Matt Jones said that people would be put in the gaol in the U.K. for blogging about their experiences on a jury. Here, jurors are permitted to say as much or as little as they want to anyone about this stuff. Indeed, the lawyers were anxious to take advantage of this immediately after we were all dismissed. They even asked the judge to tell us they wanted to speak with us all, and they stood out in the hallway via which we would exit to intercept us before we could depart. I told them to look for my blog posting.