Monday, September 14, 2009

Consensus in the Courtroom

Twenty-two years ago I was selected to be on a jury. It was a civil case about a local farmer suing a local bank because, the farmer claimed, he'd been coerced into signing over rights to an otherwise unencumbered piece of land as additional collateral when the bank got nervous about the terms they'd originally given him on a loan. The farmer claimed he didn't know his rights and the bank president had taken advantage of him. Presentation of the testimony and evidence was completed in six days. On the seventh day the lawyers rested.

While this story is very much old news, I'm dusting it off for three reasons:
1. The trial took place in the spring of 1987—about six months before I went out on my first job as a process consultant, and my jury experience helped gel in me: a) my interest in group dynamics; b) my sense that I had something to offer; and c) my understanding of the widespread need for something better than the ways we typically make decisions.

2. I was appalled by the gap between the way the jury process is meant to safeguard justice and the way decisions are actually made by the ordinary citizens who comprise juries.

3. This bit of history is on my mind right now because I used the example of this experience during last weekend's facilitation training (Weekend V of the 8-part Integrative Facilitation Training that I'm conducting with Ma'ikwe in North Carolina) to illuminate the opportunities for people to use consensus thinking and facilitative tools in non-consensus situations. While this is an important topic and this was a decent example, I hadn't prepared well to make my points. By writing about it, I figure I can take a second bite of that apple.

Courtroom Curiosities
o Although I believe laws governing court procedures vary somewhat by state, in 1987 Missouri jurors were not only forbidden from discussing a case in progress with people outside the trial (for example, when one went home at night), we were also forbidden from discussing it with one another until the case was turned over to us, and we were forbidden to take notes while the court was in session. Interestingly, we were allowed to make notes when court was in recess.

To me—already 13 years into my life in intentional community—taking notes during serious meetings was automatic, and I figured a trial counted as a serious meeting. I was taken by surprise when the judge halted proceedings the first day to make sure that my notebook was closed whenever he was in the room. This meant I had to rely on my memory instead of notes taken in the moment, and I had trouble seeing this as an enhancement of justice. Why not give everyone a notebook and encourage the practice?

The judge told us that the rationale for banning notetaking among jurors during trial was that those who didn't take notes would tend to defer to those who did, thus destabilizing the equality among jurors. As it turned out, the other jurors in fact did defer to me when the case was turned over to us, because they all knew I was recording notes during the breaks, and they trusted my record better than their memory. In the land of the blind, the one-eyed man is king; heaven forb
id I should be allowed to use both eyes. What a system!

o Leaving the rules about notetaking aside, I don't understand why jurors are not allowed to ask questions. If we don't understand something, we can't we ask for more information? When lawyers plead before the Supreme Court, after all, the justices are allowed to query them. While everything that is admitted into evidence is physically handed over to the jury for perusal once the case has been handed over to us, the reality was that no one looked at any of it, nor was it referred to, except from memory.

And that was just the beginning of the curious things that transpired.

o When the case was finally given to the jury, it marked the first time in a week that any of us were allowed to discuss the case. As we had been directed by the judge to start by selecting a foreman, we did so. They selected me. (Perhaps my taking notes projected an impression of organizational competence.) While I suppose there's a general expectation that the foreman has some kind of authority to manage the deliberations, nowhere is this spelled out and you have to make it up as you go along.

As I reflect back on that first hour together in the jury room, the image of herding cats leaps to mind. Everyone wanted to talk at once, and everyone was fed up with listening. After a few futile attempts to focus the conversation, I announced that I was giving up: the lot of them could simply engage in freewheeling commentary until everyone felt ready to have a single conversation. Somewhere in the second hour we reached that point—though not before I was able to discern that there were a lot more things on trial than just a lawsuit about collateral.

o The demographic of the jury was eight men and four women. I was 37 years old at the time, and there was one other man about my age; the other six were over 50. When we did a straw poll early on, to see which way the wind was blowing, the vote was 6-6. The four woman and the two younger men combined in favor of the plaintiff; the six older men sided with the bank. It turned out that that was not a coincidence. The older men were viewing events through different lenses than the rest of us:

A. It happened that the lawyer for the plaintiff was from St Louis, and not someone local. While there's a certain amount of parochial favoritism that's probably characteristic of rural counties everywhere, this non-local prejudice was compounded by the lawyer also being Black. My county has no Black residents and the jury was all White. Although Brown v. the Board of Education happened more than 30 years earlier, there was nonetheless palpable racial prejudice among some of the older men. To some extent there was a clear preference to see the White lawyer prevail over the Black one. Thus race was on trial. Ugh.

B. Most of the older men were farmers, and they didn't have much respect for the plaintiff as a peer. It grated on them that he might earn a financial reward through a lawsuit that they felt was outside his capacity to earn agriculturally. In fact, if he were a better farmer, they reasoned, he wouldn't have been in such substantial debt to the bank in the first place. They felt he should not be bailed out for his inefficiencies. Thus the trail became an assessment of farming competency and a referendum on what constituted fair return on one's efforts.

C. As farmers, the older men were typically dependent on local banks for cash flow loans. With only two banks in town, they were afraid that finding against the bank would be bad for business—either because the bank might take operations elsewhere, or might close off credit to any jurors who found against them. Thus the trial became a measure of what was best strategically for the local economy, and how to play it safe.

• • •
Where, I wondered, was there room for the case being decided on its merits? Boy, did I feel naive.

Because this was a civil case (not criminal) the standards for a decision were different than those I had absorbed watching Perry Mason on TV. Instead of requiring unanimity, it was sufficient that 9 of the 12 agreed with a course of action (either in favor of the plaintiff or the defendant). Nor were we asked to decide "beyond a reasonable doubt" what happened. It was enough to reach a decision based on what we felt the evidence showed most probably occurred.

Consensus Tools at Work
Here are the things I did as foreman in an attempt to navigate this complicated group dynamic, and which ultimately led to a verdict that we could all support.

1. Move away from positions and navigate from core interests
It was crucial to uncover early on that the 12 of us were not judging the case on the same basis. While some of us were focusing on whether the farmer had a legitimate beef about how the bank handled the request for additional collateral (it all boiled down to what we thought most likely transpired in a closed-room conversation where only the farmer and the bank president were present), it was important to know that the older men were afraid of incurring the bank's displeasure and that they didn't respect the plaintiff as a farmer.

2. Walk away from tangential inflammatory statements
While I had a knee-jerk outrage reaction to the racist side comments that some of the men made about the plaintiff's lawyer, I chose to let that go. I figured that as long as this was not being put forward as a reason to side with the bank (while I was on guard about this possibility, it didn't happen), then we were more likely to be able to build a workable solution. My immediate needs would be met so long as I was vigilant about not allowing the farmer's lawyer's race to be a factor in how we came to agreement.

3. Focus on bridging instead of advocacy
In attempting to build consensus in situations where there exist non-trivial differences, it's often useful to approach the issue in two stages: first, flush out all the factors that are in play; and second, make a transition to focusing on the search for a course of action that adequately balances those factors.

4. Make sure that all speakers feel heard—especially if they say something controversial
If a person says something edgy, or something they feel strongly about, they are highly likely to repeat themselves (often with increasing volume and frustration) Simply making sure that you've heard someone (to their satisfaction), can make an enormous difference in how smoothly you navigate tough topics.

5. Proceed at a pace that doesn't feel rushed to anyone
While this may seem obvious, everyone does not process information or know their own mind at the same rate. If you chivvy along the slower processors (in the name of reaching the finish line sooner), it's often false economy. Pushing tends to result in push back, which will either undermine how quickly you'll be able to tackle the next topic, or erode the trust needed for a solid decision. People tend to get indigestion when asked to swallow before they're finished chewing. In fact, if you push hard enough, they'll spit out their food and it's messy all around.
• • •
After several hours of deliberation, we were able to reach agreement on finding for the plaintiff (establishing that the bank president should have known better what the proper process was for boosting the collateral on the loan), yet honored the concerns of the older jurists by limiting the damages to something modest. Thus, the bank wasn't hurt badly and the farmer didn't get rich.

In the end, I think we approximated justice pretty well, yet I wonder to this day how things would have gone if there hadn't been a nascent process consultant serving as the foreman, able to bring the tools of consensus into the jury room.

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