That persuasive juror may just be the one who is in no hurry to go home

The persuasive juror who manages to sway the majority through his passion, eloquence and irresistible logic is part of Western cultural lore. It appears that one commenter on this blog even perceives himself as having played that very role.

The following exchange raises the possibility that the ability of a single juror to sway a whole jury is attributable to much more mundane dynamics – dynamics that are put in place by the unanimity rule. The key paragraph is the last one.

The exchange is part of an interview with a lawyer who managed to win on appeal a patent infringement case that he lost in a lower court. Both times the decisions were made by juries.

Ars: So what happened at the Soverain trial?

We told our story to the jury and the judge—who we were, what we represented, and why we didn’t think we infringed.

They trotted out some of the inventors, who had long since moved on, and brought them in as high-priced consultants. And they had a bunch of experts to talk about how this was indeed a truly fundamental breakthrough in technology and innovation.

Lo and behold, I unveil to you the world of—shopping cart! And this shopping cart—unlike all the shopping carts used for hundreds, if not thousands of years—should be paid for based on the total dollars of transactions in the shopping cart.

It’s very common in troll cases for them to say, “Our widget is so critical, we deserve a penny on every dollar.” But what they have is a completely commodity functionality that could be coded any one of dozens of different ways. I mean, come on. Let’s not stretch credibility. The good people of East Texas who sit on juries—and I think juries anywhere—are not going to buy that crap.

The American justice system has issues, but it fundamentally works. The jury system is sound. Juries are people of good will and have common sense.

Ars: Spoken like a lawyer who won a patent trial! But you didn’t, at least at district court. Newegg was found to infringe and ordered to pay $2.5 million.

The jury in this case found us not guilty of direct infringement, but found us guilty of indirect infringement in five claims. We thought the verdict was very appealable on many different grounds.

Just think about the dynamic if you’re a juror. Most of the jury could be very pro-defense and think the plaintiff is full of it. But all you need is a single one who is friendly to the plaintiff and holds out on the verdict. You just need one really stubborn person—that can drive a whole jury to make a decision that swings the other way. Everyone wants to go home. It’s not their money. Defense oriented jurors are more likely to compromise and say, “Maybe we’ll just split the baby. Maybe we’ll just give them $2.5 million and call it a day.”

4 Responses

  1. Yoram, I don’t understand your point. In my case (“one commenter on this blog even perceives himself as having played that very role”), the majority of jurors were disposed to convict, with a couple of undecideds. After a couple of days of deliberation I persuaded a small minority to vote not guilty and the trial was abandoned. A retrial happened a year later and the new jury convicted unanimously after a few hours. To my mind the second jury was representative but the first one wasn’t (even though I would, of course, argue that the first one got the answer right).

    What’s your point?


  2. PS, If your point is that jurors don’t really care, then in my case the waverers would have convicted quickly (the judge only required a 10:2 majority). Fortunately not everyone is as cynical as your post implies — I was impressed that all jurors wanted to get to the truth of the matter (including the majority that I disagreed with). They took their task extremely seriously. The only flaw was that they lacked any sort of direct experience/knowledge of the matter under deliberation (fraudulent trading) and allowed their natural empathy for the plight of the victims to prevail over what should have been their real focus (the intentions of the accused). If the victims had been faceless corporations rather than individuals I doubt if the jury would have convicted.

    >Everyone wants to go home. It’s not their money.

    If that were the case, then democracy by stochation wouldn’t work. The unknown factor is whether a representative sample of citizens in a large state would understand that it is their money, as this is something that voters currently struggle to appreciate (being bribed with money taken from their own pockets or, more accurately, their children’s pockets).


  3. you can require that the decision is unanimous. You can also pay the jurrors so that it is not rule by default to the person who has the most free time to kill and less responsibilities at home. You also need to avoid rule by activists, etc. Read Bob Black’s thesis on democracy for a good discussion.


  4. Not having fair pay is certainly an important part of the problem with the existing system. It is a symptom of the overarching theme – putting the jurors in a passive, disempowered role and having all the active roles performed by professionals – the judge, the lawyers, the legislators.

    As for requiring unanimity – that would mean giving minority opinions undue weight. In the case of criminal trials it may make sense to tilt the scales a bit in favor of acquittal so a requirement of a supermajority for conviction seems reasonable. A unanimity requirement is still clearly unjustified.

    “Bob Black’s thesis on democracy” means this? Looks interesting.


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