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I disagree with Karen Lisko's assertion that “solid research continues to find that the biggest predictor of a verdict is the evidence—not who you have on the jury” [“The Newer Generations in the Jury Box,” June 2006 issue]. I thought the only people left today who believed that were uninformed judges. To claim that the evidence is the primary factor in jury decisions irrespective of who is on the jury is in conflict with proven and reliable research as well as my many years of jury trials. See, for example, Facts Can't Speak for Themselves: Reveal the Stories That Give Facts Their Meaning by Eric Oliver (www.nita.org), along with a large body of other published research. If the evidence was the primary determining factor we would not have racially unjust verdicts, voir dire would be a useless exercise and all of the marketing research about how people make decisions would be false. Life would be so much simpler for trial lawyers who could ignore who is on the jury, and what their deep-seated beliefs and values are, and simply count on the weight of the evidence as the sole determiner of the outcome. Unfortunately, the realty is this is pie-in-the-sky thinking.
—Paul N. Luvera, Attorney at Law, Seattle, WA
Karen Lisko Responds:
It is indeed true that the evidence is the biggest predictor of the verdict. Academic research continues to find it to be so (studies summarized in D.J. Devine et al.'s 2001 article, “Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups” published in Psychology, Public Policy and Law) as has our private research with thousands of actual and mock jurors over the years. It also continues to be true that the evidence is not the only predictor of verdicts. Other factors, like jury composition, presentation order, attorney style and jury instructions matter. They are simply not the biggest predictor.
The reality is this: Verdicts arise from a healthy interaction between the evidence and the audience, whether it be judge or jury. Jurors and judges do their level best to ground their decisions in the evidence—evidence developed and put before them by counsel. It is also a psychological impossibility for these fact finders to set aside their own personal biases and life training when analyzing that evidence. They use their common sense as they are encouraged to do. That interaction between the evidence as framed by counsel and the audience is proof that the system is working as it should.
I was very disappointed in Law Practice to see that you published the piece by Stefani Quane [“It's Not Your Parents' Divorce,” June 2006 issue]. Her flip advice to clients that “not all relationships are meant to last forever,” together with her misguided and rather arrogant belief that she is in a position to grant “absolution,” together with Law Practice's unfortunate willingness to give credibility to such views by publishing them, are a cause (and not just a reflection) of the unfortunate generational shift she describes. Our society is suffering terribly from the breakdown in families encouraged and “absolved” by divorce “lawyers” (“promoter” may be a more appropriate shingle title) like Ms. Quane, and by articles like this. I am sincerely sorry that she was the victim of divorce as a child. I respectfully hope Law Practice will use more thoughtful editorial discretion in the future.
—Paul Michalski, Partner, Cravath, Swaine & Moore LLP, New York, NY
Stefani Quane Responds:
Thank you for taking the time to write.
We need more public discourse. I think you will find that you resonate with Elizabeth Marquardt's book about families and divorce, Between Two Worlds: The Inner
Lives of Children of Divorce. She is concerned that we have become a divorce culture and that families divorce too easily without thinking about the long-term impacts on the children. Her book is based on significant research and is a strenuous argument that couples need to be very cautious about divorce. I am writing a divorce book, and think you will be pleased to note that I include a chapter about the decision to leave a marriage and the ethics of staying committed to your oath and the things to try to save a marriage. I actually do agree with you that couples should work hard to save marriages if possible. More than that, we as a culture should work hard to prepare people for marriage so that the best matches are made and the folks going into marriage have the tools and knowledge necessary to achieve success. Having said that, there are many people who ask more from marriage than ever before in history. They take a position that marriage should grow with them and if the marriage partnership doesn't, that it is right to walk away. They are behind the movement in some areas of the country to have two levels of marriage. A “never divorce” type and a divorcable type.
Paul Michalski Responds:
Thank you for your very thoughtful response. One tremendous tool for couples that may be appropriate for some of your clients is the book Love and Respect by Dr. Emerson Eggerichs. I can vouch for its power because it is a tool that helped my wife and me take our marriage from the brink of divorce to heights we never thought possible. I don't believe that people should settle for poor or marginal marriages for the sake of the children—I think they should be taught how to build their marriages into all God meant them to be.