A British study of 1,000 mothers revealed that children ask their mothers an astonishing average of 390 questions per day. Although the subject matter of the questions varied greatly, there were several common queries: “Why is water wet?” “Where does the sky end?” “Why are you so old?” Being a childless (by choice), unmarried (by agreement), female (by birth) trial attorney, with zero experience in child rearing, the sheer number of questions mothers are bombarded with each hour was shocking.
Two years ago, Illinois joined the ranks of the nearly 40 other states that permit the use of written juror questions directed to witnesses. As in most states, the use of juror questions in Illinois is based on the judge’s discretion or the agreement of the parties. Like most changes, acceptance of this “newfangled” practice was slow.
I began my eighth medical malpractice trial in November—a complex wrongful death and obstetrical negligence case. Our first task: questioning and selecting the 12 lucky Illinois residents who would listen attentively to our case for a whopping $17.50 a day. Voir dire is the only opportunity jurors have to talk to the parties—after which they are required to sit in silence and listen to the attorneys babble on for weeks. Unfortunately, voir dire is not designed to allow jurors to tell the parties what information they need to hear to resolve the problem presented to them. For the rest of the trial, attorneys ask all the questions, have access to all the facts and information, and talk about only what they feel is important. Jurors silently suffer through confusion, ambiguity, and the inevitable gaps in information.
In response to research uncovering the rate at which children question their parents for information, the Society for Research in Child Development published several monographs analyzing the role questions play in a child’s overall cognitive development, concluding that children are the most receptive to information they receive as a result of their own questions. The same is true of jurors.
Ten minutes before opening statements, our judge announced his intention to allow juror questions. During the course of our trial, after every witness, at least 12 and sometimes as many as 20 jury questions poured in. The questions clearly reflected areas where particular jurors found information gaps and identified something they needed from the lawyers. The questions offered insights into what concepts jurors had already retained and what concepts they were relying on to formulate more questions.
As the trial moved forward, we listened carefully to the questions and shifted strategies to focus on issues that were engaging the jury conceptually. We used the facts accepted in the questions to reframe issues that were being misconstrued. In contrast to our strategy, opposing counsel objected to many of the questions being asked and seemingly ignored the content. By the last day of trial, the questions revealed a conceptual shift in our favor. The jurors were targeting clearly relevant information that helped persuade them to solve this problem in our client’s favor. After six hours of deliberation, our client and his children were awarded full and fair compensation for the death of their wife and mother.
My boss and I were still in the courtroom when the jurors were released from their service. Many of the jurors made their way over to our table to shake hands and break the silence that had lasted nearly two weeks. The last to approach was the foreman, Mike. Following brief congratulations, Mike said, “Thanks for making my job easy.” I gave Mike my most inquisitive look, hoping to encourage him to explain further. He took the bait and stated very simply, “By the time I was put in charge, you had already answered all their questions.”