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“Our nation’s founders…unwittingly bequeathed to us a framework that could, someday, allow millions of us to solve challenging national problems by consensus.”
Imagine our legislators, in the halls of Congress, listening with an open mind to constituents, experts and each other, seeking solutions together that benefit as many Americans as possible, in a manner that is calm, rational and respectful. And succeeding.
I can’t imagine that either.
To be fair to our current leaders, only rarely in American history did Congress operate with such grace. But that has been its ideal.
We should not give up on that ideal. The code to gracefully solving our national problems may already be embedded in the American DNA, in the constitution itself. Specifically: the establishment of a trial by an impartial jury.
Trial by jury was not invented in the United States, but it has blossomed on this soil like nowhere else in the world. 90% of the trials by a jury take place in the United States. Our founders and generations of American leaders thereafter believed that an impartial jury of one’s fellow citizens creates the greatest likelihood for justice to be served.
That faith is held aloft by five American traditions that allow a jury to succeed:
Here is what it looks like when decisions are made following these traditions:
Why? So they can vote according to their conscience.
I remember being questioned by lawyers for the plaintiff and defendant when they were deciding whether I should be allowed to serve on the jury for a trial. One attorney asked whether I was related to, or close friends with, a police officer. The other asked if I’d ever had a bad interaction with a police officer. The defendant was a police officer who was off-duty at the time of the accident. One attorney wanted to make sure I didn’t have an overly positive view of cops, the other wanted to make sure I didn’t have an overly negative view. Between the two of them, the jury system was trying to make sure I wouldn’t be prejudiced one way or the other.
That questioning was about eliminating bias on a jury, but more significantly, the jury system tries to make sure that a juror is not in a position to personally benefit or be harmed, financially or otherwise, based on the outcome of the trial. If an employee of a company was serving as a juror in a trial involving their own company, well, that’d be a major conflict of interest. Same if that juror was an investor in that company. Same if that juror was friends with the CEO. Someone with those conflicts of interest would almost certainly never get on that jury.
The American jury system has institutionalized a process that attempts to eliminate conflict of interest.
Now, my question is whether the American jury system shed light on the American political system, on the way we make national decisions.
So, let us turn to the American political system.
When our lawmakers are charged with making decisions, do they have a conflict of interest? Yes, and that’s an understatement. It is difficult to imagine a group of people, charged with making decisions, more burdened with conflicts of interest. Donors, special interests and political parties necessarily weigh heavily on the mind of a politician if the politician hopes to remain in power…or, in the current environment, even maintain their friendships.
We are quick to question the integrity of politicians. But try to put yourself in their shoes: the constant fundraising you need to do; the expectations of businesses groups, industries or unions who helped promote you during your campaign; the members of your political party who expect you to vote with them; the media, blogosphere and opposing political party ready to criticize your every move, and the maneuvering of those with ambitions to run against you in the next election.
Imagine trying to operate purely according to your conscience in an environment like that.
Conflicts of interest are institutionalized into our political system.
But we, the American people as a whole, have no such conflicts of interest. When it comes to broad national problems with education, immigration, the environment, violence, infrastructure and healthcare, the vast majority of Americans instead have a general interest in the well-being of our country.
Lawyers and their clients can spend months or years preparing for a trial. Even in my 1.5 day long car accident trial, the accident itself had happened two years prior. I spoke to one of the lawyers after the trial was over, and he said that they’d spent a couple hundred of hours preparing. (Candidly, given how much time they put into it, the presentation of evidence was lousy, very confusing. Remember I was talking earlier about the lawyers who make evidence clear and engaging for a jury? Well, I wasn’t talking about these lawyers.)
The preparation for a trial includes the opportunity for both sides to collect evidence. The two sides have to share their evidence with each other. If you are following a trial and a surprise witness is suddenly called to the stand, it’s very likely that you are watching a movie. In real trials, there are no surprise witnesses. The lawyers of both sides not only know the witnesses who will be called, they have a clear idea of what those witnesses are going to say, because they’ve already interviewed those witnesses prior to the trial at what is called a “deposition.”
This pre-trial investigative work is governed by an extensive set of rules that determine what evidence can be presented to a jury. These “rules of evidence” first started to take shape centuries ago. In 1975, led by the Supreme Court, Congress passed a law codifying 67 rules for determining what can be presented at a federal trial as legitimate evidence. Those rules strive to make sure that evidence is relevant, reliable and fair. A judge serves as referee, both before and during a trial, to make sure both sides work within the bounds of the Rules of Evidence.
And if that weren’t enough, the system provides for punishing those who try to undermine it: if you lie under oath during a trial you can go to prison. If you create a fake document and present it as evidence, you can go to prison. If you destroy evidence that would affect the outcome of a trial, you can go to prison.
The American jury system has institutionalized a process that tries to insure that all the information presented to a jury is reliable and relevant.
A juror in a trial cannot say to the judge, “Hey, I’ve got a thing tomorrow, can someone take notes for me or something?” No, every juror needs to hear all of the evidence.
I heard a story about a trial during which a juror fell asleep. The judge stopped the trial, had the bailiff wake the juror, and asked the juror questions to determine what evidence she had missed. And then had the lawyer who had been presenting, present that evidence again to make sure the sleepy juror had heard it. This isn’t just an anecdote, it’s a formal legal process. And it can be applied to jurors who are texting, doing crossword puzzles or anything else that is distracting them during a trial. In some cases, where a distracted juror remains throughout a trial, the defendant can petition for a mistrial.
In longer trials, 14 or more jurors will be selected, even though only 12 are needed, in case one or two jurors get sick or otherwise cannot show up. Why? Because the system absolutely demands 12 jurors, who all hear all of the evidence.
The foundation for these high expectations for jurors comes right out of the sixth and 14th amendments to the constitution providing the right to a fair and impartial jury.
The American jury system has institutionalized a process that requires all decision makers to be highly and equally well informed.
Now, let us step out of the courtroom and into Congress.
No. And again, that is, far too often, an understatement. Our lawmakers only get information and arguments from the sources of information that happen to reach them. They may or may not be present in Congress for a debate on a bill on which they will vote. And they may or may not read the Congressional Record of that debate after the fact. Their information is more likely to come from members of their own political party and its supporters. To make matters worse, frequently lawmakers do not have time to even read the legislation they are passing.
What about the American people? For any given national challenge, the American people have no accessible source of information to get all the pertinent facts and options for solutions. The news, by and large, tells us what is new, what has changed from yesterday. There are tidbits of data and helpful ideas scattered among the multitude of media sources. But comprehensive solution seeking requires a comprehensive, engaging and consolidated review of the relevant information, delivered in a way that the average American can understand.
There is ample talent among Americans for creating comprehensive solutions presentations like this.
If you doubt the average American’s capacity for such understanding, keep in mind that good trial attorneys everywhere present complex information to juries in ways that are comprehensible and even engaging, all the time. Great documentary filmmakers do it as well. So do some of our best authors, teachers and parents. One of the companies I founded in Chicago, Jellyvision, specializes in taking information that is complex and boring (but important) and making it simple and engaging. Our flagship product for the last decade helps people with what has to rank as one of the most complex, boring (but important) tasks that face Americans: picking out medical insurance. In 2019, we were helping over 4 million employees select medical benefits and even making them laugh along the way. If you can make insurance entertaining and understandable, you can do it with anything.
Of course some people can make sense of new information more deeply and swiftly than others. And some of those others have mental faculties too limited to get them placed on a jury. H.L. Mencken is credited with saying: “Nobody ever went broke underestimating the intelligence of the American public.” If that resonates with you, then I imagine at some time or another you’ve heard a news story and concluded that a huge group of Americans were idiots. Well, rest assured, at one time or another, those Americans have probably considered you an idiot by association as well.
Thing is, last summer when I went on a tour to sit down and have in-depth conversations with all kinds of Americans, it turns out that individually, Americans are pretty bright, reasonable and rational. However, we aren’t particularly well informed. Sometimes we think we’re knowledgeable, but it is hard, even for experts, to get the whole story. Does lacking adequate information get in the way of us feeling confident in our decisions? Not as often as it should. And that is why it’s key that jurors get comprehensive information.
Trial by jury in the United States demonstrates that if you ask us regular Americans to make a ruling that has real world consequences, and provide us with solid, comprehensive information, we can make thoughtful decisions.
After the 12 of us had been selected to serve on the jury, we were sent into the jury room. I’d never been on a jury before, but I was pretty sure one of us had to be chosen by the others to be foreperson. Even though an hour earlier I was dying to get out of the courthouse, now, I wanted that job.
So, the first time we sat down together, I asked each of the 11 other jurors about themselves, one after another. When it came time to elect a foreperson, I was the one guy who had already led a conversation giving everyone the opportunity to talk. I was elected. 😉
Several hours later, after the evidence had been presented and we went back to the jury room, we began a simple process of talking, respectfully, on the question of how this car accident happened. People talked through their theories, others would ask for clarification, or see if they could poke holes in the logic. It’s natural to want to be correct and to have others believe you. But what struck me at the time was how willing everyone in the jury room was to modify and improve their thinking based on the conversation. Some people had strong opinions, but they held them loosely. The 12 of us were listening to each other.
Now, I’m pretty sure most of us were not always as open minded in the rest of our lives as we were in that jury room. Me included. Maybe me especially. So why were we being so open minded that afternoon?
I think there are three reasons. One is another tradition of the American jury system that didn’t make the list of five: our deliberations were in private. We had no audience but each other. We were free to speak honestly and change our minds without being concerned with outside appearances or criticism.
It flies in the face of our modern passion for transparency in government dealings, but had transparency been the norm in 1787, it is possible the United States of America would never have gotten off the ground. Washington, Madison, Franklin, Hamilton and the other delegates conducted the entire constitutional convention privately. From the middle of May to the middle of September, the participants shared nothing about what was happening inside of the Pennsylvania State House (now Independence Hall). The only reason we know what happened in there was because Madison took copious notes which have been combined with the less copious notes of Hamilton and other delegates. The founders made the deliberate decision to keep the proceedings out of the public eye so that the delegates could speak honestly and freely change their minds…which they did, many times over. That private environment offering flexibility in opinion was critical to the formation of a viable nation.
A second reason our conversations as jurors were civil and collaborative goes back to the fact that none of us had a conflict of interest. We did have one shared interest, but it was a general interest we shared with all Americans: we wanted justice to prevail. It didn’t make any difference the outcome…except if we got it wrong.
The final reason for our cooperative discussions: we were charged with coming to consensus. More about that in a moment.
The American jury system has institutionalized a process that leads to respectful, open minded discussions among the decision-makers .
Our lawmakers can easily be presented with information that is false or misleading, and probably often are; so much of their information (sometimes all of it) comes from sources that have an agenda.
Congress does have the power to subpoena witnesses for an investigation (that is, force them to appear and testify), require them to take an oath and punish them if they lie under oath. The reality is that even when witnesses to congress are suspected of lying or even found to be lying, they are rarely punished.
Returning to the idea of a comprehensive solutions presentation, the question is: how might it be developed in a way to try to insure its relevance and reliability? Does the judicial system provide insight here?
Well, the process could also be bound by a set of rules. The rules would determine whether a statement has adequate evidence to be considered a fact (and for that matter, whether it should be considered a high confidence fact, a lower confidence fact or not a fact at all). We could also establish rules for determining whether a proposed solution is relevant and how the pros and cons of that solution should be weighted. Moreover, the application of these rules can be done in a way that is transparent. This isn’t news reporting, which sometimes relies (legitimately) on protecting its sources of information. For national problem solving, the determination of facts and the relevancy of solutions can be done in the sunlight, open to public observation and scrutiny.
What’s more, this process can be inclusive: special interest groups (along with think tanks, academics, experts and regular citizens) could be invited to provide data, arguments and solutions. Of course, nearly everyone providing information or ideas would come with an agenda, but that doesn’t mean their information and ideas don’t have merit. But it does mean that all data anyone provides would be subject to these “Rules of Evidence” to separate fact from fiction, reasoning from fear-mongering, and evidence-based solutions from no-evidence distractions.
In our present environment, I’ve heard people parrot some members of the media that “people don’t care about facts,” that we live in a “post-truth era.” Well, I’ve recently spent a lot of time talking to a lot of different people, and I have yet to meet one who doesn’t believe in the importance of facts. It is not that people don’t think facts are important, it’s that they are uncertain (or far too certain) about where to get facts upon which they can rely.
There are a lot of people who “don’t know who to believe anymore.” A republic cannot sustain itself if the People have no faith in any institution to deliver facts for them. Re-establishing faith in institutions on solid ground is something we will need to do. A fact-finding process that is apolitical, rules-based, transparent and inclusive could be part of the solution.
Our lawmakers have a tradition based on debate, not deliberation, which is to say, grand speechmaking to win arguments, rather than sitting together around a table listening to each other in an effort to find a way forward together.
Yes, lawmakers sometimes sit together around a table to hammer out an agreement. But because of concerns about the reactions of their party, donors, special interests and their most vocal critics, these discussions can never be truly open minded. They are negotiations between rival factions, each needing to avoid censure. That’s not an ideal environment for collective problem solving.
Regular Americans citizens, however, could deliberate. Obviously, you can’t have a conversation around a table with millions of people. But you could have millions of people in pairs and small groups (both in person and by video conference) discussing presented options for solutions with each other. As in a court of law, those deliberations could be done in private.
In a jury trial, the presentation of evidence is, typically, open to the public. Likewise, the presentation of possible solutions on a national problem could be open to the entire American public, even if only a subset of the public were involved in deliberating.
How would the deliberations end? That leads us to our fifth tradition of the American jury system…
It took us well into the morning of the second day before our jury reached a consensus. Despite the grainy photos we had of the cars after the accident and the convoluted presentation by the lawyers, all 12 of us left that room feeling like we had actually solved the puzzle together. We felt confident that we’d uncovered the truth of what happened during the moment of the accident, who was at fault and who wasn’t. We were high-fiving each other.
I kind of doubt whether juries ruling on murder cases celebrate when they reach consensus. But I do imagine there is a shared feeling of satisfaction when a jury concludes its work confident that, together, they made sure justice prevailed.
Personally, I’ve never experienced anything like that feeling before or since, let alone with a group of complete strangers. As I said, there is no experience like it in American life.
The American jury system has institutionalized a process that requires decision-makers to keep talking until they all agree.
Let us return one last time to Congress.
Our lawmakers can pass laws even when 49% of our representatives disagree with it. Passing legislation by a simple majority sounds fair, but the implications of continually making national decisions with such narrow support could be, for our democracy over time, catastrophic.
In a jury room, the jurors know that they will have failed their purpose, if they fail to reach a consensus. When people, who do not have a conflict of interest, need to reach consensus, the way they interact is likely to be radically different than if one side can win by simple majority: there is more incentive to listen to each other and to be willing to change one’s mind. There is, frankly, more incentive to pursue truth together, rather than angle for domination.
If regular Americans, with no conflicts of interest, were making national decisions together by consensus, then when they are in their pairs or small groups deliberating, there would be less value in “winning” an argument and more value in seeking the right answer together…because that is more likely to lead toward consensus, and therefore success over failure.
You may now be wondering: how many regular Americans are we talking about? And how in the world could they arrive at a consensus?
We have a hypothesis. It’s ambitious, but it’s not as crazy as you’d think.
That’ll be the next blog entry: number 4.