Written by The bizarre weather we’ve been having this winter has me reflecting on one way to look at trials.
It snows in Atlanta in February, and the critics of global warming jump up and down with glee, proclaiming the weather to be proof that global warming is a myth. As columnist Thomas L. Friedman points out, though, when global temperatures rise and the climate changes, “The weather gets weird. The hots are expected to get hotter, the wets wetter, the dries drier and the most violent storms more numerous.”
The basic big-picture explanation for this is that the Earth is a system, and that when you add more energy to a system, the behavior of the system becomes more extreme. (Think of a pan of boiling water, which boils more violently as you pour more heat into it. Or think of a bouncing American football, which will bounce farther away, in an unpredictable direction, the harder it’s bounced.)
This is a good place, I think, to start thinking about trial theory: viewed most simply, a jury trial is a system (a loosely-coupled complex system, but that’s more than we need to know right now). We don’t have to know what the components of the system are to know that adding energy will make its behavior more extreme. If it’s a stable system, adding energy will make it behave more extremely in a predictable way. . . until it breaks down (overrevving an internal-combustion engine). If it’s a system with some randomness built in, adding energy will magnify the randomness, with higher highs and lower lows.
Most jury trials are at least a little bit unpredictable—if the parties knew how they were going to come out, trials wouldn’t be needed. Adding energy to an unpredictable trial magnifies the unpredictability.
In the systemary trial, one way we can add energy is by adding witnesses. The more human beings get on the witness stand to testify, the more data the jury has to consider, the higher the emotions, and the less predictable the behavior of the system. Irving Younger’s “commandment” of cross-examination, “Never ask a question when you don’t already know the answer,” is a prescription for adding less energy. (As Paul Luvera writes, Younger was wrong.)
There are certainly times when we want to keep the energy low and the trial predictable—for example, when our adversary has a burden that she can’t meet on her own.
There are often times when we want more unpredictability in a jury trial—for example, in a plaintiff’s case when we are trying to maximize damages, or in a criminal case when the deck is heavily stacked against us and it’s time to throw in everything including the kitchen sink.
There might even be times when we want to try to add enough energy to make the trial-as-a-system break down.
Recognition of the fundamental systemariness of the jury trial is a helpful tool in knowing whether to ask that next question, put on that next witness (the accused?) or even put on a case at all.
