Complete Volume for the Year 2017

Katherine E. Vinez1 1 Katherine E. Vinez is currently a candidate for a Juris Doctor from Stetson University College of Law, and also serves as a Law Review Associate.

4 Stetson J. Advoc. & L. 1 (2017)

I. Introduction

Wearable devices, also known as “wearables,” are the next generation of portable technology and have quickly become ubiquitous in our society.2 2 Nathan Chandler, How FitBit Works, How Stuff Works. With the demand for these new gadgets continuously increasing, society can expect wearables to have a tremendous impact on almost every facet of life. First, consider the potential of wearable devices not only in litigation, but also in the realm of medicine, employment, and everyday living. Produced by companies like Fitbit Inc., Apple Inc., and Google Inc., wearables have already transformed the way users communicate, exercise, and keep organized. Despite some hesitancy within the legal community, these devices have also begun to slowly impact and transform litigation. The first known use of wearable technology data as evidence in litigation is the personal injury case involving a law firm in Calgary, Canada, using their client’s activity data from her Fitbit “to show that her activity level is less and compromised as a result of her injury.”3 3 Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM).
Some of the most popular wearables on the market are the Fitbit fitness trackers (“Fitbit”), which are designed to measure the wearer’s activity levels by collecting data using sensors that monitor things such as the user’s location, vital signs, sleep patterns, and physical activity.4 4 Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014). These devices create detailed descriptions of the user’s everyday activities and habits, which are then compiled and stored in “the cloud.”5 5 Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM). See also Jonathan Strickland, How Cloud Computing Works, How Stuff Works. While Fitbit technology has revolutionized the way users exercise and monitor their health, the accumulation of personal health and activity data could also have a significant — perhaps even detrimental — impact on the justice system if it is determined to be admissible evidence. Wearable technology will particularly burden the courts in five ways: (1) The sheer volume of data collected by these devices will be indiscernible without employing specialized analytics companies; (2) The owners may be unaware that the data collected by these devices is discoverable; (3) The courts will have difficulty drawing the line between discoverable and privileged data; (4) The parties must prove that the information is reliable, and if it is not, must supplement the information with other evidence and witnesses; and (5) The parties asking for electronic discovery will have to prove that the information is relevant to the litigation and cannot be found anywhere else.6 6 See Neda Shakoori, Wearables: Your Next Trial Witness?, Daily J. (S.F., Cal.) (Dec. 10, 2014). Additionally, the electronic evidence found on wearable technology could be considered quantified self-incrimination because the data is unconsciously produced by simply going about a normal day. There are also privacy concerns involving the use of health and personal data collected on wearable devices being collected as evidence, but for the purposes of this Article, the analysis of the problems involved with using electronically stored information (“ESI”) from wearables will focus on the relevancy, reliability, and probativity of the data.
ESI, includes items such as emails, text messages, voicemails, metadata, and pictures, which could all be discovered on wearable devices as valuable supplemental evidence in support of a plaintiff’s or witness’s testimony.7 7 Electronically Stored Information (ESI), Practical Law. See also Sharon Nelson & John Simek, The New Federal Rules of Civil Procedure: An ESI Primer, Law Prac. (Dec. 2006). But, ESI “could just as easily be used by insurers to deny disability claims, or by prosecutors seeking a rich source of self-incriminating evidence.”8 8 Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014). Using such evidence to supplement, or as an alternative to, witness testimony could potentially eliminate the inherent concerns of witness reliability by making it easier to discredit false or inaccurate testimony. However, the admissibility of ESI from wearable devices introduces several new evidentiary challenges, including the relevance, authenticity, accuracy, and reliability of the data, which results from the fundamentally unreliable nature of the wearable devices.9 9 Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) No. 5 (June 4, 2015). See also How Accurate are Fitbit Trackers?, Fitbit.com. An additional problem stems from the fact that data from these unreliable devices may not be submitted to the court in its original form, but as analyzed conclusions completed by a third-party analytics company.10 10 See Technology—Fitbit Data Used As Evidence, Herman Herman & Katz, LLC (Dec. 11, 2014). This presents its own problems based on the unknown and un-testable nature of the algorisms these companies use to interpret the data for use as evidence in litigation.
In an attempt to articulate the potential uses and shortcomings of using wearable devices in litigation, this Article will briefly discuss all of the inherent flaws associated with wearable technology, but will primarily focus on the relevancy, reliability, and probativity concerns surrounding both the devices and the third-party analytics companies. This Article will argue that data from wearable devices should only be used as supplemental evidence, rather than as the basis of a claim or as an alternative to expert witness testimony, in accordance with the Federal Rules of Evidence. These devices are known to be inherently unreliable and as such, courts should not treat them as irrefutable evidence that can stand-alone. Until the rules are amended to specifically address the requirements for using this type of ESI, or the industry improves the reliability of the devices and the algorithms used to interpret the data, courts should rigorously scrutinize the data collected from wearable devices for its relevance, accuracy, and reliability before admitting it as supplemental evidence.
Part II of this Article will begin by explaining the development and functionality of wearable devices — specifically the Fitbit. It will also explore the growing demand for wearable technology. Part III will briefly examine previous electronic discovery of ESI and determine how wearable data discovery could be more problematic than its earlier counterparts, such as portable devices and computers. It will then further discuss the particular benefits of using data from wearable technology to help resolve the concern over witness credibility and how wearables have the potential to “kill the art of lying.”11 11 Andrea Peterson, How Technology Could Kill the Art of Lying, The Washington Post (July 8, 2015). Additionally, it provides examples of the potential uses of Fitbit data in the courtroom, specifically analyzing the only two cases known to have used ESI from a wearable device as evidence.12 12 Valerie Waltz, Police: Florida Woman Fabricated Rape Report in Lancaster County, FOX43 (June 19, 2015, 11:59 AM). See also Technology—Fitbit Data Used As Evidence, Herman Herman & Katz, LLC (Dec. 11, 2014).
Part IV will analyze the evidentiary hurdles established by the Federal Rules of Evidence and the Federal Rules of Civil Procedure, with a focus on the relevance, reliability, and probativity of wearable device data as evidence in court. It will also provide a similar analysis of the Federal Rules of Evidence and Daubert13 13 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 585 (1993). requirement of reliability applied specifically to the third-party analytics companies interpreting the data to be used as evidence. Part V will recommend that the legal community use data from wearable devices in a strictly limited capacity until the technology industry can improve the reliability and functionality of the devices. Lastly, this Article will suggest that if the technology has not been improved and parties still desire to use this type of evidence in their cases — despite the significant evidentiary challenges — the only permissible way of submitting wearable device data in court would be as supplemental evidence under the Federal Rules of Evidence.

II. The History, Technology, and Popularity of Fitbit

A. Fitbit’s functionality and features

Fitbit is a wearable fitness-tracking device that was created to help encourage people to be more active. Despite the number of other wearable fitness trackers and health monitors available, Fitbit leads the market in sales and hype — “accounting for over 50% of the three million plus sales of wearable fitness devices across a one-year period in 2013 and 2014.”14 14 Mikel Delgado, How Fit is That Fitbit?, Berkeley Science Review (Oct. 7, 2014).
The device is designed as a wristband that tracks the user’s activity, while the user is wearing the device, and then syncs that data to the cloud for the use of monitoring their exercise progress, sleep quality, and medical statistics. However, “Fitbit is more than a simple fitness tracker (step counter) these days. The wearable trackers are [now] connected to software that syncs [the user’s data] between the device, mobile app and [the] web.”15 15 Robert J. Nelson, Everything You Need to Know About Fitbit, iMore.com (June 12, 2014, 8:24 AM EDT).
The newest Fitbit, named the Fitbit Charge 2 and known as one of the most innovative fitness watches on the market, tracks even more data than previous models. The technology behind the Charge 2 includes: GPS, three-axis accelerometer, a three-axis gyroscope, a digital compass, an optical heart rate monitor, an altimeter, and a vibration motor. With the addition of these sophisticated features, Fitbits can now track steps, distance, calories burned, active minutes, stairs climbed, hourly activity, sleep habits, stationary time, continuous heart rate, breathing patterns, location, pace, elevation, and routes, among other calculable figures.16 16 See Fitbit Charge 2, Fitbit.com. The result is an enormous amount of activity and health data that provides an intimate knowledge of the user’s every move, as long as the user is wearing the device and using it properly. It is important to remember that reliable data is only collected when the user is wearing the device regularly and properly. When a user fails to wear the device or wears the device in a manner that would prohibit the collection of data — for example, wearing the device on the ankle instead of the wrist or wearing the device while pushing a shopping cart — the data would be inconsistent and therefore, fail to provide such an intimate knowledge of the wearer’s life. Additionally, step counts can be false or misleading because the device will record less activity data when the activity requires less arm movement — like pushing a shopping cart or baby stroller.17 17 See How Accurate are Fitbit Trackers?, Fitbit.com.
To monitor the data being collected by the Fitbit, users are only required to own the device and the accompanying equipment needed to sync with the Fitbit database. “Devices like Fitbits sync automatically to a smartphone throughout the day via Bluetooth” or they can be programmed to sync with other Bluetooth-capable devices.18 18 Wearable Tech: The Impact on Cases and ediscovery, D4Discovery (Dec. 8, 2016). This process is completed using the cloud computing system. All you need is a device and application to connect to the multitude of computers, servers, and data storage systems that create the ‘cloud’ of computing services. After the device syncs the activity data to the cloud, users can view the data in their online Fitbit profiles where they can scrutinize their progress and improvements (or failures), plan and strategize their exercise routines, and examine their health statistics and data. With this user-friendly technology and continued societal concern of staying healthy, Fitbit wearables are only becoming more popular.19 19 See John Divine, Fitbit Does It Again; Beats Expectations for Earnings, Revenue, U.S. News (Aug. 2, 2016, 5:16 PM).

B. The growing demand for wearable technology

From smartwatches and smart glasses to fitness trackers and health monitors, the possibilities are limitless for innovations in the wearable technology industry.20 20 See generally Margaret Rhodes, A Wearable Gadget Implanted in Your Hand Isn’t as Freaky as You’d Think, Wired (Oct. 20, 2014, 6:30 AM). The most popular wearables thus far are the devices that fall into the category of fitness trackers, but statistics prove that wearable devices as an entire group are not as popular as many may believe.21 21 The Wear, Why, and How, The Economist (Mar. 14, 2015). This may contribute to why there have been so few cases to discuss the issue of using wearable data in court, but it does not necessarily diminish the need for clarity in the standards and requirements for admitting wearable technology data into evidence.22 22 See Steven W. Teppler, Testable Reliability: A Modernized Approach to ESI Admissibility, 12 Ave Maria L. Rev. 213, 213 (2014). This is especially true, as the popularity and sales of all wearables devices is projected to steadily increase over the next several years.23 23 Facts and Statistics on Wearable Technology, Statista (Dec. 4, 2015), .
Although this Article focuses singularly on Fitbit fitness trackers, there are a plethora of other devices available in the industry, most notably the Apple Watch and the Microsoft Band, which could also have a tremendous impact on litigation.24 24 See Lynnsey Gardner, Fitness Tracker Data Used in Court Cases, News4jax.com (Feb. 22, 2016, 11:29 PM). While the number of wearable devices on the market continues to increase each year, so does the number of devices that could potentially generate data for use as evidence in a courtroom. Moreover, “[d]ata from wearables is poised to become even more insightful for courts as their sensors become ever more sophisticated.”25 25 Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM). With the demand increasing for new devices and technology, courts need to prepare for the onslaught of cases attempting to use wearable device data as evidence and should rigorously scrutinize the data to ensure its accuracy and reliability.

III. The Untapped Potential of Using Fitbit Data As Evidence

Recognizing the value of ESI evidence, several courts have begun to allow data from other types of electronic devices to be admitted as evidence during litigation.26 26 See United States v. Safavian, 435 F. Supp. 2d 36, 36 (D.D.C. 2006) (allowing emails as evidence); State v. Dunn, 7 S.W.3d 427, 427 (Mo. Ct. App. 1999). For instance, electronic discovery has been used in numerous cases to obtain anything from text messages stored on mobile devices, to the Internet search history stored on the hard drive of a computer.27 27 Michael Arnold & Dennis R. Kiker, Big Data Collection Problem of Little Mobile Devices, 21 Rich. J.L. & Tech. 10, 10-31 (2015). Under the current Federal Rules of Evidence, admitting ESI collected from portable devices and computers as evidence does not require much more than the admission of standard evidence. However, despite the fact that the legal system has seen a continued increase in the use of digital data in cases, courts have been hesitant to address the admissibility of evidence collected and stored specifically on wearable devices.28 28 Samuel Gibbs, Court Sets Legal Precedent With Evidence From Fitbit Health Tracker, The Guardian (Nov. 18, 2014, 11:03 EST).
Unlike in the past when the discovery tools available to uncover relevant evidence were limited to methods such as plaintiff testimony, expert testimony, medical records, and surveillance, wearable devices, like Fitbits, will be able to provide attorneys with a new source of evidence in the form of hard data.29 29 Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) No. 5 (June 4, 2015). These devices store endless amounts of data about the user’s location, activity levels, sleep patterns, and moreeffectively “creating a detailed narrative of [the] user’s entire day.”30 30 Neda Shakoori, Wearables: Your Next Trial Witness?, Daily J. (S.F., Cal.) (Dec. 10, 2014). The result of all of this data hording is simple: “[we] are no longer the only source of data about [ourselves].”31 31 Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014).

A. Glimpses of wearable devices in the justice system

The first known case in the United States to use data from a wearable device began when the police in Lancaster County, Pennsylvania, collected information from a Fitbit to help determine that Jeannie Risley fabricated a rape report.32 32 Valerie Waltz, Police: Florida Woman Fabricated Rape Report in Lancaster County, FOX43 (June 19, 2015, 11:59 AM). Risley called 911 and reported to the police that she was sleeping when she woke up to find her attacker sexually assaulting her. However, further investigation revealed evidence directly contradicting her claim.33 33 Brett Hambright, Police: Fitbit Reveals Fake Report, LancasterOnline (June 19, 2015). During the investigation, the police found Risley’s Fitbit on the floor “and when they downloaded its activity, the device became a witness against her.”34 34 Kashmir Hill, Fitbit Data Just Undermined a Woman’s Rape Claim, Fusion (June 29, 2015, 2:57 PM). The activity data collected by the device revealed that she was actually awake and moving around the premises at the time she claimed she was attacked.35 35 Brett Hambright, Police: Fitbit Reveals Fake Report, LancasterOnline (June 19, 2015). In combination with the other evidence poking holes in Risley’s story, such as the lack of footprints in the snow outside the home and the missing signs of an intrusion, her Fitbit data led the police to dismiss her assault claim. As a result, “Risley was charged with false reports to law enforcement, false alarms to public safety, and tampering with evidence for allegedly overturning furniture and placing a knife to make it appear she had been raped [at knifepoint].” Unfortunately, there is limited information on her physical appearance and the medical reports from the time that the event took place.36 36 Myles Snyder, Police: Woman’s Fitness Watch Disproved Rape Report, ABC27.com (June 19, 2015, 2:28 PM).
The Lancaster case may have been the first known use of this type of data in the United States legal system, but the first case to ever use Fitbit data in a courtroom was a personal injury case that took place in Canada.37 37 Alexander Howard, How Data From Wearable Tech Can Be Used Against You in a Court of Law, The Huffington Post (July 3, 2015, 12:59 PM EDT). In this case, the plaintiff, a former personal trainer, was injured in an accident four years earlier, when Fitbit was not yet available to the public.38 38 Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM). Unfortunately, this meant that the plaintiff would be unable to show her activity data from before the accident occurred, but her attorneys still believed this would be enough.39 39 Karla Grossenbacher, ‘Wearables’ In Court: How Your Electronic Data Becomes Evidence, Law360 (July 13, 2015); Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) No. 5 (June 4, 2015). The interesting difference in this case was the use of a third-party, health-data analytics company, called Vivametrica, Inc.40 40 Tamsin McMahon, Data From Wearables Could Be Used As Evidence – For or Against You, Maclean’s (Jan. 5, 2015). The company is “an open source data analytics platform that pulls data from smartphones and wearable fitness devices — with user consent — to get a picture of health trends.”41 41 Jennifer Brown, Data Fit for the Courtroom?, Canadian Lawyer (Feb. 2, 2015). Vivametrica analyzed the plaintiff’s Fitbit data by comparing her activity levels to the activity levels of the general public to determine if she was “healthy” and “normal” for someone in her profession and age range.42 42 Tamsin McMahon, Data From Wearables Could Be Used As Evidence – For or Against You, Maclean’s (Jan. 5, 2015). If the data analysis produced by Vivametrica could prove that her activity levels had fallen below the baseline for fitness standards of her age group, it would illustrate the negative effects of the accident and support her claim of personal injury.43 43 Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM); Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014). Ultimately, her attorneys hoped that using her Fitbit history would help prove that the accident had hindered her ability to be active and exercise, and therefore entitle her to compensation.
These two cases are just the beginning of legal authorities and parties tapping into the vast amounts of information gathered by wearable devices to supplement or defend their cases.44 44 Samuel Gibbs, Court Sets Legal Precedent With Evidence From Fitbit Health Tracker, The Guardian (Nov. 18, 2014, 11:03 EST).

B. Supplementing or replacing witness testimony

Wearable data has unlimited potential in the legal context to help resolve some of the weaknesses that plague current forms of evidence. One of the most prevalent weaknesses stems from concerns about the reliability and credibility of witnesses. Using Fitbit data as an additional source of evidence could help eliminate the concerns about the fallibility of human memory, biases, and intentional deceptions that undermine witness testimony reliability.
Courts are aware of the flaws that abound in witness testimony and are particularly concerned with the fallibility of the human memory. After studying human memory capabilities, psychologist Elizabeth Lofus stated

Early on . . . the observer must decide to which aspects of the visual stimulus he should attend. Our visual environment typically contains a vast amount of information, and the proportion of information that is actually perceived is very small . . . . Once the information associated with an event has been encoded or stored in memory, some of it may remain there unchanged while some may not. Many things can happen to a witness during this crucial retention stage.45 45 Elizabeth F. Loftus, Eyewitness Testimony 21 (1st ed. 1979).

Lofus was also not the first to recognize the inherent faults in human memories. In fact, the United States Supreme Court has even found the issue so prominent in litigation that it included dicta on the subject within several different opinions.46 46 See, e.g., United States v. Wade, 388 U.S. 218, 235 (1967); Manson v. Brathwaite, 432 U.S. 98, 119 (1977). For instance, Justice Brennan addressed the imperfections of human memories in the context of mistaken eyewitness testimony by explaining that it is most likely attributed to the inherent dangers of eyewitness testimony and the suggestibility intrinsic to the pretrial process.47 47 See, e.g., United States v. Wade, 388 U.S. 218, 235 (1967). Unfortunately, there are a large number of cases involving mistaken identifications by witnesses, based on the proverbial untrustworthiness that characterizes eyewitness testimony, to support Justice Brennan’s argument.48 48 Fredric D. Woocher, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan. L. Rev. 969, 970 (1977) (citing F. Frankfurter, The Case of Sacco and Vanzetti (1927)).
This problem also exists in other areas of witness testimony, including testimony given by experts. “[Courts] understand that doctors and other witnesses have expertise, but they [are not] all-knowing beings.”49 49 Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014). As a result, courts use cross-examination as a “safeguard” against inaccuracies and are tasked with determining the reliability of the evidence, in light of the possibility that the witness’s memory is inherently unreliable.50 50 United States v. Wade, 388 U.S. 218, 235 (1967). The pervasiveness of such faulty memories has been the subject of both legal and medical studies for decades and the resulting conclusion is that human memory is flawed because: “(1) an observer cannot possibly take in all of the information available in a scene; and (2) an observer’s memory may shift over time, including what may naturally be forgotten and what may be reconstructed from suggestive procedures.”51 51 Kristin Bergman, Cyborgs in the Courtroom: The Use of Google Glass Recordings in Litigation, 20 Rich. J.L. & Tech. 11 (2014) (citing Elizabeth F. Loftus, Eyewitness Testimony (1st ed. 1979)).
Additional concerns about witness credibility involve both biases and intentional deceptions. In studies concerning the affect of biases on witnesses, psychologists have concluded that biases permeate individual’s decision-making so much that they impact everything from distance perception to choosing a seat on a plane.52 52 Anjanette H. Raymond & Scott J. Shackelford, JD, PhD, Jury Glasses: Wearable Technology and Its Role in Crowdsourcing Justice, 17 Cardozo J. Conflict Resol. 115, 136 n.95 (2015). This is caused by “the personal needs and motives of the observer [distorting their] perception.” For example, victims may unconsciously alter their memories of their attacker’s physical appearance by including physical characteristics “that the victim associates with the personality traits typified by the criminal’s behavior.”53 53 Fredric D. Woocher, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan. L. Rev. 969, 981 (1977). This is not done in an attempt to lie or to deceive the court, rather it is an unconscious phenomenon caused by the victim’s beliefs and prior experiences. Though it occurs less frequently than the other flaws of witness testimony, there are also instances where witnesses consciously lie in an attempt to deceive the justice system.
However, technology is on the verge of making lying much more difficult to get away with. In fact, “the full scope of how our increasingly networked and documented lives can catch deceptions can be hard to fathom.” With the accumulation of data from wearable devices comes a better way to determine the credibility of witness testimony. To utilize technology in this manner, courts would need to employ the use of wearable data as supplemental evidence as a comparison to what someone is actually testifying.54 54 Andrea Peterson, How Technology Could Kill the Art of Lying, The Washington Post (July 8, 2015). Of course, this is in circumstances limited to the type of data collected by the specific device worn by the witness — for instance, Fitbit data would most likely not be able to disprove inaccurate eyewitness identification. However, Fitbit data could be useful in proving that a witness lied about their location on the day of the crime. A great example of this potential use of wearable data is the Lancaster case involving Risley’s false rape report. The use of the Fitbit data to disprove Risley’s false rape report, eradicated Risley’s chance of getting away with her lies to the police.55 55 See, e.g., Scott Greenfield, But for Fitbit: A Rape That Never Happened, Mimesis Law (June 30, 2015). Using wearable technology data as evidence in this manner helps eliminate the conscious or unconscious ability to lie as a witness, but fails to completely remove the opportunity to be deceitful due to the possibility of the information being faulty or misleading.
These weaknesses, intrinsic to witness reliability, have significantly impacted numerous cases throughout the entire history of the justice system. In an attempt to solve the issues of fallibility of human memory and potential biases, courts could allow data from Fitbits and other wearable devices to be used as supplemental evidence to witness testimony. A great example of this potential use is shown by the personal injury case from Canada — in which the plaintiff supplemented her own testimony with activity data from her Fitbit, to help prove that her accident had caused her injuries, which limited her ability to exercise, and therefore helped eliminate doubts shrouding her claims that potentially entitled her to compensation.56 56 See generally Keith Lee, The Newest Field of E-Discovery: You, Above the Law (Nov. 20, 2014, 3:04 PM). Using wearable device data to supplement a plaintiff’s testimony and replace the testimony typically provided by an expert witness eliminates the fallacies that plague witness testimony, because the wearable device is a machine that cannot generate biased, unconscious, or intentionally deceitful results. Additionally, wearable device-generated data cannot be considered hearsay for the purpose of admitting it as evidence since hearsay does not include statements made by animals of machine-generated assertions.57 57 Fed. R. Evid. 801.
There are few tested examples of the potential uses for wearable data as evidence, but as the devices grow in popularity, it is likely that Fitbits, and other wearable technology, will be used as evidence for the purposes of self-incrimination, impeaching the witness, or bolstering the plaintiff’s case.

C. Predicting wearable technology’s potential in litigation

There has been a tremendous amount of speculation about the myriad of cases in which wearable technology would be useful in supplementing or defending a claim. Not only could this type of data be useful in personal injury cases and criminal cases, as discussed above, but there is also potential for this data to be relevant in several other legal scenarios including: (1) criminal cases in which one would need an alibi; (2) civil cases like traffic violations, car accidents, or even divorces in which heart rate data and location could prove an extramarital affair; (3) claims of self-defense in which heart rate and activity data could suggest they were in a dangerous situation; and (4) workers’ compensation claims, particularly when an employee is injured on the job while wearing a device that tracks location and health data.58 58 See generally Christina Bonnington, Data From Out Wearables Is Now Courtroom Fodder, Wired (Dec. 12, 2014, 6:30 AM). Though many believe that wearables could be a “gold mine of potentially relevant ESI,”59 59 Neda Shakoori, Wearable Technology: A Perfect Fit For Litigation, Mcmanislaw.com (Aug. 21, 2014). it is difficult to predict the full potential of the hoarding of digital data in the legal realm.

IV. Evidentiary Challenges and the Chaos of Wearables

There are always risks with technology innovations and wearable technology is no exception to that rule. While there are many potential benefits to admitting data from wearable devices as evidence in court, there are several challenges (many evidentiary) that will make that process extremely difficult.
Technology is always changing and growing to appeal to mass markets. As a result, courts are struggling to keep the discovery-net wide enough to encompass information stored on wearable smart devices as the technological industry constantly evolves. There are a number of ways in which wearables could encumber the litigation process, but this Article focuses primarily on how to determine the relevance, reliability, and probativity of the data stored on wearable devices for use as evidence in court. Other problems not fully discussed in this Article include the identification of potential ESI becoming more difficult because most users will be unaware that the data stored and collected by wearable tech is discoverable. Preservation is also becoming more difficult because most users will not know to preserve the information, and collection of the data is becoming more complicated because most wearables send the ESI to the cloud.60 60 Maureen O’Neill, E-Discovery and the Internet of Things, DiscoverReady (Nov. 14, 2014). Another issue that seems to arise from using wearable device data, as evidence, is that opposing parties will try to compel that the information be “turned over by the device wearer as part of routine discovery in personal injury cases.”61 61 Steven M. Sweat, Could Apple Watch Data Prove Your Personal Injury Case?, Victimslawyer.com (May 4, 2015).
Through the years, the courts have had to determine the best ways to deal with the immeasurable amount of information found through electronic discovery, the privacy concerns associated with that process, the preservation of such volatile data, and the production of the ESI. In response to the growing need for ESI to be admissible as evidence, changes were made to Rule 34 of the Federal Rules of Civil Procedure.62 62 See Michael Arnold & Dennis R. Kiker, Big Data Collection Problem of Little Mobile Devices, 21 Rich. J.L. & Tech. 10, 10-31 (2015). These changes addressed some of the issues courts were encountering when trying to request electronic discovery of digital data. As a result of these efforts, Rule 34 now states that a party may request, within the scope of Rule 26(b), any other party to produce “any designated documents or electronically stored information — including writings drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.”63 63 Fed. R. Civ. P. 34(a)(1)(A). This effectively settled the dispute over whether ESI could be considered a “document” under the rules. However, numerous issues still plague the discovery and use of ESI, particularly now that ESI is also being collected from wearables and used as evidence.64 64 Margaret Littman, Data From Wearable Devices Is Being Eyed as Evidence in the Courtroom, A.B.A. J. (Apr. 1, 2015, 4:00 AM CDT).
The biggest challenges facing the use of wearable data as evidence are the reliability flaws of the devices themselves and the evidentiary hurdles that are likely to keep courts from admitting the data as evidence.

A. The chaos of wearables

To provide a comprehensive understanding of the concerns and challenges arising from the use of wearable technology data as evidence, it is vital to consider the inherent flaws of the current wearables on the market.65 65 See generally Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014).

1. Reliability Concerns Abound

The wearable devices on the market continue to become more sophisticated, with better features and functionality. But until the industry addresses the inherent lack of reliability associated with wearables, it will be difficult to use the data they collect as evidence in court. Even if the industry addresses the lack of reliability, additional issues of relevancy, accessibility, privacy, collecting/processing and costs will prevent a significant number of cases from using this data as evidence.66 66 Neda Shakoori, Wearables: Your Next Trial Witness?, Daily J. (S.F., Cal.) (Dec. 10, 2014). The data from these devices is unreliable for several reasons including, but not limited to: (1) the ability to be misused (users can remove the device at any time, users can self-manipulate the data, people other than the owner could be using the device, some of the devices could register moving your arms as “steps,” and even animals could wear the devices and log activity data)67 67 Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) no. 5 (June 4, 2015). , (2) the ability for the data to be misinterpreted (due to the potential use of third-party analytics companies instead of the raw data), and (3) the large discrepancies between the different wearables on the market.68 68 Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014). This will make it incredibly difficult for courts and analytics companies to standardize the admissibility of wearable data.
For example, when Fitbit is monitoring a user’s heart rate, a large variety of factors could affect the data collected on the device. Another example includes the accuracy of the GPS data collected on Fitbits. The GPS in Fitbits requires a direct path to the satellite it is using to receive and transmit radio transmissions. “If the signal is being blocked — either because you’re underground, near many tall buildings, or as a result of atmospheric effects — GPS will not work. Thus, whereas GPS gives you a more accurate measure of distance than step counting alone, the actual accuracy depends on both your environment and the weather.”69 69 How Accurate is GPS?, Fitbit.com.

2. Problems that May Arise

An example of why the misuse of the device could be a problem can be seen in the Lancaster case. During the police investigation, the woman said her Fitbit was lost during the altercation, but the device was then found and the data on it used against her.70 70 Brett Hambright, Police: Fitbit Reveals Fake Report, LancasterOnline (June 19, 2015). But what if someone else took the device and wore it or put it on an animal? What if a plaintiff’s wearable device records less activity post-accident? Would that be evidence that the plaintiff sustained injuries during the accident that affect their ability to exercise, or just reflect that they either wore the device less or exercised less post-accident to manipulate the data collected?
These questions do not have complete answers because the technology is still advancing to recognize the different circumstances apparent in each of these hypothetical situations. As Neda Shakooi explains, “on some devices you can binge-watch Orange Is the New Black while seated and, if you wave your arms, your device may log it as physical activity. Even when the devices work as intended, people forget to charge, sync, or even wear them.”71 71 Margaret Littman, Data From Data from Wearable Devices Is Being Eyed as Evidence in the Courtroom, A.B.A. J. (Apr. 1, 2015, 4:00 AM CDT). Additionally, another major issue is that the features and functionality of these wearables varies greatly between brands and devices,72 72 Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) No. 5 (June 4, 2015). See also How Accurate are Fitbit Trackers?, Fitbit.com; see also Nicole L. Black, Wearable Tech Data as Evidence in the Courtroom, LLRX.com (Sept. 23, 2015). and as such, the devices are too inconsistent amongst themselves for analytics companies to attempt and standardize the process of interpreting data stored on them.73 73 Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014).
Even if you can determine that all of those reliability concerns have been rectified, the collection of ESI on wearable technology will still be an extremely difficult task that will potentially require these third-party analytics companies to interpret the data and present it in a form that courts will be capable of understanding.74 74 See generally Neda Shakoori, Wearables: Your Next Trial Witness?, Daily J. (S.F., Cal.) (Dec. 10, 2014). This challenge involves operational and evidentiary issues because these types of technology devices use the cloud computing systems to store the data they collect. At a recent symposium one discussion focused on the practical challenges to obtain and use Fitbit data in litigation with one participant commenting, “[b]ut then you [try and] get it out and you just sort of say, ‘What can I even do with it? Because I can’t present it at trial. It’s completely unworkable; there’s some difficulty even making sense of it.’”75 75 James R. Silkenat, Practicing Law in the Age of Surveillance and Hackers – An Exploration of Privacy and Data Security, 38 Am. J. Trial Advoc. 575, 576 (2015). Finally, the cost of obtaining the data from the provider and paying the third-party analytics company, that will interpret the data, will inhibit a large number of parties from using this type of evidence that could potentially be very useful in their cases.76 76 Neda Shakoori, Wearables: Your Next Trial Witness?, Daily J. (S.F., Cal.) (Dec. 10, 2014). All of these examples only scratch the surface of the potential reliability concerns that will persist when parties rely on Fitbit and other wearable device data as evidence.

B. Problems with ESI involving the Federal Rules of Evidence

The current cases using Fitbit data should encourage the legal community to determine the manner and timing in which parties should be expected to disclose their wearable device data, regardless of whether it is a Fitbit or any other brand of wearable technology.77 77 Alexander Howard, How Data From Wearable Tech Can Be Used Against You in a Court of Law, The Huffington Post (July 3, 2015, 12:59 PM EDT).
To introduce wearable technology data as evidence, the court must consider a number of the Federal Rules of Evidence that have been previously used to admit other forms of ESI. Judge Grimm’s opinion in Lorraine v. Markel American Insurance Co. for the United States District Court for the District of Maryland discussed the evidentiary rules analysis required for assessing the admissibility of ESI, and set forth a comprehensive guide for admitting ESI as evidence.78 78 See generally Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007). The Lorraine model begins with determining the relevance of the data and ends with balancing the probativity of the data with the danger of unfair prejudice.
The Lorraine model suggests:

Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, of [sic] if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance. Preliminarily, the process by which the admissibility of ESI is determined is governed by Rule 104, which addresses the relationship between the judge and the jury with regard to preliminary fact finding associated with the admissibility of evidence. Because Rule 104 governs the very process of determining admissibility of ESI, it must be considered first.79 79 See generally Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007).

Within Lorraine’s guide to determine if the data is admissible, the proponent of the ESI evidence must first determine the relevance of the data under Rule 401. Under this rule, information is determined to be relevant for the court’s purposes if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.80 80 Fed. R. Evid. 401. The vast amount of data collected on wearable devices could make it difficult for the parties and the courts to limit the scope of the e-discovery to just the information that makes a fact more probable or is important in determining the action. As an example, “an arson investigator could not care less that you ran 5 miles on the date of the fire, but would be very interested that your running app[lication] mapped out your entire route, which happened to go right by the site of the blaze.”81 81 Sharon D. Nelson, John W. Simek & Thomas L. Mighell, What the Internet of Everything Means for Lawyers: Evidence, Privacy and Data Security Implications, American Law Institute (Feb. 9, 2015). Both pieces of information are intertwined within the wearable device, and therefore it would be difficult to limit the collection of evidence to just the one bit of information being sought as evidence, in this example the user’s location, without including other data that is not relevant and not admissible evidence.
Though determining the relevancy is an important step in the evidentiary process, it is more important to determine the authenticity of the information and the probative value of the data. The authentication process for evidence focuses on three key elements required to prove the information is relevant to the case; these elements include legitimacy, accuracy, and the relation to the parties.82 82 Christina Bonnington, Data From Out Wearables Is Now Courtroom Fodder, Wired (Dec. 12, 2014, 6:30 AM). This is required under Rule 901(a), which states that the proponent of the evidence must satisfy the requirement of authenticating the evidence by producing evidence that could support a determination that the evidence is in fact what the proponent claims it to be. This requirement can be satisfied with a witness testifying that the item is what the proponent claims it is, as long as they have knowledge of the item, or with other evidence that describes the process and shows that the item generates reliable conclusions. Authentication can also be done with a comparison to other authenticated items under Rule 901(b)(3).83 83 Fed. R. Evid. 901(a), (b)(1), (b)(3), (b)(9). For example, emails can be authenticated by other emails already admitted into evidence, even when there is no identifying information included on the email because the email in evidence has the same screen name or characteristics.84 84 Sheldon M. Finkelstein & Evelyn R. Storch, Admissibility of Electronically Stored Information: It’s Still the Same Old Story, 23 J. Am. Acad. Matrim. Law. 45, 48 (2010).
As in the case of wearable devices, it will most likely be necessary to have the wearer of the device testify for purposes of authentication.85 85 Fed. R. Evid. 901(b)(1). And although there is a risk of manipulation of the data, the possibility of alteration does not directly eliminate the potential use of the data as evidence. Rather, the proponent simply has to present a reason for the jury to believe that the evidence is what they say it is. A potential downfall for plaintiffs bringing in such evidence is that they are later subject to review on cross-examination and this opens up the door for the opposing party to prove to the jury that the evidence is in fact not what the plaintiff would like you to think it is, or to impeach the witness.86 86 Jill Schachner Chanen, What Everyone Is Wearing, A.B.A. J. 12, (Apr. 2015). When using wearable data that has been analyzed by a company like Vivametrica, the proponent would also need to authenticate the process used to produce the data and prove that the process leads to accurate findings.87 87 Fed. R. Evid. 901(b)(9). This too could be accomplished by having an expert witness from the company take the stand and testify to the authenticity of the analytical process. However, this expert testimony will be subject to the admissibility standards established by Daubert and Rule 702.
In addition to authenticating the data, it is vital to determine the probative value of the data under Rule 403 before admitting the information as evidence. Rule 403 states that “the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”88 88 Fed. R. Evid. 403. Courts will be particularly concerned with the potential for unfair prejudice “in circumstances when the court is concerned as to the reliability or accuracy of the information that is contained within the electronic evidence.”89 89 Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007) (citing St. Clair v. Johnny’s Oyster and Shrimp Inc., 76 F. Supp. 2d 773, 773 (S.D. Tex. 1999)).
Due to the unreliable nature of the wearable technology, it seems most likely that courts would decide that the data could prejudice the jury and therefore, should be deemed not admissible in evidence. For example, lie detector tests have been proven to be inherently unreliable technology and have been continuously banned from being used as evidence in the courtroom for fear that it could result in unfair prejudice and bias. For years, courts were also hesitant to admit emails and x-ray machine scans into evidence, but as the technology became more popular and better understood throughout society, parties were required to meet lesser standards to authenticate these items for use as evidence.90 90 Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007).
However, the use of wearable technology is not as prevalent in society as email and x-ray machines, and as such, the general population does not yet fully comprehend how they function. This presents a problem for the jury, because if they do not understand how the technology works, and they fail to understand the potential for unreliable data produced by these devices, it could result in an unfair bias. Though an argument exists that the use of wearable data could be used to bolster the party’s case, it is more likely that courts will find it to result in a major bias and will find it inadmissible based on its unreliable nature.
To determine if wearable data can be used as evidence, it is also important to establish that the device is good science and reliable under Rule 702.91 91 Fed. R. Evid. 702. This is the most detrimental evidentiary hurdle that will need to be overcome and involves a combination of requirements set out by Rule 702 and Daubert.92 92 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-95 (1993). Under Daubert, expert testimony is admissible under Rule 702 when it (1) helps the trier of fact better comprehend the evidence or determine facts at issue, (2) is “based on sufficient facts or data,” (3) is based on methods and standards considered reliable, and (4) reliably applies those methods and standards to the facts involved in the case.93 93 Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) No. 5 (June 4, 2015). No case exists that discusses this potential flaw in wearable data, but it seems most likely that this will make it incredibly difficult for parties to submit wearable data as evidence in support of, or defending against, claims. To determine if wearable data were reliable under these standards, the proponent of the evidence would have to prove that the expert witness and the information the expert relied upon for their testimony were based on sound scientific methodology.94 94 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993). Based on the characteristics of wearable technology, including the fact that many are incapable of distinguishing arm movement from actual steps, courts will likely determine that the science behind Fitbit and other wearables is not good science, and therefore expert witnesses will not be able to rely on or testify about such data.
The same problem occurs when attempting to hear expert witness testimony about the analytics process used to generate the data.95 95 Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014); Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM). To determine if the expert witness is relying on good science, the court must look at non-dispositive factors such as the general acceptance of the science in the scientific community, whether it can be tested, the error rate of the process, etc.96 96 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993). However, these factors will be nearly impossible to examine based on the ever-increasing variety of wearable technology on the market. Many of the devices are unique in some way, and therefore, there is no standardization of the technology or the processes the analytics companies use to produce the summarized data from wearable devices.
With a lack of standardization in the science or scientific knowledge of the methodology, wearable devices cannot be determined to be good science and will not be admissible under the Daubert test and Rule 702.97 97 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993). This determination also correlates with the requirements previously discussed under Rule 403, because if the data fails Daubert, it fails 403. If the data and technology of wearables were reliable science, then it would not fail the probativity test under Rule 403. However, because wearable devices have been determined to be unreliable — as shown by the devices failing to track activity data accurately, having users forget to wear the device at all, and users can manipulate the device to show the data they want — they cannot meet the standards required under the Daubert test and therefore also fail the probativity test under Rule 403. Due to the incredible chance for bias and prejudice that outweigh the benefits of using data from wearable devices, it is vital that the courts impose strict reliability and probativity standards when determining if the parties are allowed to use such evidence in their cases.

V. Conclusion

The historical context of the electronic discovery of wearable technology is limited, primarily because the technology is still incredibly new and still developing. Using data collected from Fitbits and other wearable devices has just begun. Legal professionals still need to learn how and when to use the data properly, and how to maximize the advantages of this new technological source of evidence for their clients.
As a result of this continued development and educational process, the uses and limitations of ESI stored on wearable devices may continue to change in the next several years. The accuracy and reliability of these devices is continuing to improve and this will help diminish concerns over the use of wearable device data as evidence, particularly as they become more connected to other devices, such as portable phones and computers, already used as evidence in court.98 98 Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) No. 5 (June 4, 2015). However, as the technology currently stands, wearable devices lack the reliability necessary to be considered on their own, and therefore should be used as evidence in an extremely limited capacity.
It is possible for courts to continue allowing ESI from portable devices under the current Federal Rules of Evidence, if they slightly expand the discovery-net and recognize a few standards specific to wearable devices.99 99 See Erik Harris, Discovery of Portable Electronic Devices, 61 Ala. L. Rev. 193, 193-222 (2009); Serge Jorgensen, Convergence of Forensics, Ediscovery, Secure, & Law, 12 Ave Maria L. Rev. 291, 291-311 (2014). Nevertheless, it is more likely that courts will not rely entirely on this data due to the unreliable technology behind the wearable devices.
The discovery of wearable technology will impose several burdens on courts and the parties, based on the very nature of the data. Although the data will be difficult to introduce as evidence because of the relevancy and reliability of the information, this data has the potential to be valuable to the parties involved in the litigation of personal injury and workers’ compensation cases. However, the potential value of the data does not replace the reliability concerns that plague the data and technology behind the wearable devices. Therefore, to ensure reliability, parties should be encouraged to supplement the ESI obtained from wearable technology with other forms of traditional evidence, such as doctor’s testimony, expert witness testimony, plaintiff testimony, medical records, surveillance, etc. Though this too has its flaws based on the evidentiary hurdles involving Rule 702 and the Daubert test.
The time has come to recognize and utilize the fact that our daily lives are monitored by a highly networked and personal set of wearable devices that generate very specific data, pertaining to our physical and mental well-being. However, it will need to become more reliable before an evidentiary onslaught of wearable data can begin to take over the justice system.

Footnotes

1Katherine E. Vinez is currently a candidate for a Juris Doctor from Stetson University College of Law, and also serves as a Law Review Associate.
2Nathan Chandler, How FitBit Works, How Stuff Works.
3Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM).
4Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014).
5Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM). See also Jonathan Strickland, How Cloud Computing Works, How Stuff Works.
6See Neda Shakoori, Wearables: Your Next Trial Witness?, Daily J. (S.F., Cal.) (Dec. 10, 2014).
7Electronically Stored Information (ESI), Practical Law. See also Sharon Nelson & John Simek, The New Federal Rules of Civil Procedure: An ESI Primer, Law Prac. (Dec. 2006).
8Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014).
9Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) No. 5 (June 4, 2015). See also How Accurate are Fitbit Trackers?, Fitbit.com.
10See Technology—Fitbit Data Used As Evidence, Herman Herman & Katz, LLC (Dec. 11, 2014).
11Andrea Peterson, How Technology Could Kill the Art of Lying, The Washington Post (July 8, 2015).
12Valerie Waltz, Police: Florida Woman Fabricated Rape Report in Lancaster County, FOX43 (June 19, 2015, 11:59 AM). See also Technology—Fitbit Data Used As Evidence, Herman Herman & Katz, LLC (Dec. 11, 2014).
13Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 585 (1993).
14Mikel Delgado, How Fit is That Fitbit?, Berkeley Science Review (Oct. 7, 2014).
15Robert J. Nelson, Everything You Need to Know About Fitbit, iMore.com (June 12, 2014, 8:24 AM EDT).
16See Fitbit Charge 2, Fitbit.com.
18Wearable Tech: The Impact on Cases and ediscovery, D4Discovery (Dec. 8, 2016).
19See John Divine, Fitbit Does It Again; Beats Expectations for Earnings, Revenue, U.S. News (Aug. 2, 2016, 5:16 PM).
20See generally Margaret Rhodes, A Wearable Gadget Implanted in Your Hand Isn’t as Freaky as You’d Think, Wired (Oct. 20, 2014, 6:30 AM).
21The Wear, Why, and How, The Economist (Mar. 14, 2015).
22See Steven W. Teppler, Testable Reliability: A Modernized Approach to ESI Admissibility, 12 Ave Maria L. Rev. 213, 213 (2014).
23Facts and Statistics on Wearable Technology, Statista (Dec. 4, 2015), .
24See Lynnsey Gardner, Fitness Tracker Data Used in Court Cases, News4jax.com (Feb. 22, 2016, 11:29 PM).
25Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM).
26See United States v. Safavian, 435 F. Supp. 2d 36, 36 (D.D.C. 2006) (allowing emails as evidence); State v. Dunn, 7 S.W.3d 427, 427 (Mo. Ct. App. 1999).
27Michael Arnold & Dennis R. Kiker, Big Data Collection Problem of Little Mobile Devices, 21 Rich. J.L. & Tech. 10, 10-31 (2015).
28Samuel Gibbs, Court Sets Legal Precedent With Evidence From Fitbit Health Tracker, The Guardian (Nov. 18, 2014, 11:03 EST).
29Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) No. 5 (June 4, 2015).
30Neda Shakoori, Wearables: Your Next Trial Witness?, Daily J. (S.F., Cal.) (Dec. 10, 2014).
31Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014).
32Valerie Waltz, Police: Florida Woman Fabricated Rape Report in Lancaster County, FOX43 (June 19, 2015, 11:59 AM).
33Brett Hambright, Police: Fitbit Reveals Fake Report, LancasterOnline (June 19, 2015).
34Kashmir Hill, Fitbit Data Just Undermined a Woman’s Rape Claim, Fusion (June 29, 2015, 2:57 PM).
35Brett Hambright, Police: Fitbit Reveals Fake Report, LancasterOnline (June 19, 2015).
36Myles Snyder, Police: Woman’s Fitness Watch Disproved Rape Report, ABC27.com (June 19, 2015, 2:28 PM).
37Alexander Howard, How Data From Wearable Tech Can Be Used Against You in a Court of Law, The Huffington Post (July 3, 2015, 12:59 PM EDT).
38Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM).
39Karla Grossenbacher, ‘Wearables’ In Court: How Your Electronic Data Becomes Evidence, Law360 (July 13, 2015); Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) No. 5 (June 4, 2015).
40Tamsin McMahon, Data From Wearables Could Be Used As Evidence – For or Against You, Maclean’s (Jan. 5, 2015).
41Jennifer Brown, Data Fit for the Courtroom?, Canadian Lawyer (Feb. 2, 2015).
42Tamsin McMahon, Data From Wearables Could Be Used As Evidence – For or Against You, Maclean’s (Jan. 5, 2015).
43Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM); Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014).
44Samuel Gibbs, Court Sets Legal Precedent With Evidence From Fitbit Health Tracker, The Guardian (Nov. 18, 2014, 11:03 EST).
45Elizabeth F. Loftus, Eyewitness Testimony 21 (1st ed. 1979).
46See, e.g., United States v. Wade, 388 U.S. 218, 235 (1967); Manson v. Brathwaite, 432 U.S. 98, 119 (1977).
47See, e.g., United States v. Wade, 388 U.S. 218, 235 (1967).
48Fredric D. Woocher, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan. L. Rev. 969, 970 (1977) (citing F. Frankfurter, The Case of Sacco and Vanzetti (1927)).
49Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014).
50United States v. Wade, 388 U.S. 218, 235 (1967).
51Kristin Bergman, Cyborgs in the Courtroom: The Use of Google Glass Recordings in Litigation, 20 Rich. J.L. & Tech. 11 (2014) (citing Elizabeth F. Loftus, Eyewitness Testimony (1st ed. 1979)).
52Anjanette H. Raymond & Scott J. Shackelford, JD, PhD, Jury Glasses: Wearable Technology and Its Role in Crowdsourcing Justice, 17 Cardozo J. Conflict Resol. 115, 136 n.95 (2015).
54Andrea Peterson, How Technology Could Kill the Art of Lying, The Washington Post (July 8, 2015).
55See, e.g., Scott Greenfield, But for Fitbit: A Rape That Never Happened, Mimesis Law (June 30, 2015).
56See generally Keith Lee, The Newest Field of E-Discovery: You, Above the Law (Nov. 20, 2014, 3:04 PM).
57Fed. R. Evid. 801.
58See generally Christina Bonnington, Data From Out Wearables Is Now Courtroom Fodder, Wired (Dec. 12, 2014, 6:30 AM).
59Neda Shakoori, Wearable Technology: A Perfect Fit For Litigation, Mcmanislaw.com (Aug. 21, 2014).
60Maureen O’Neill, E-Discovery and the Internet of Things, DiscoverReady (Nov. 14, 2014).
61Steven M. Sweat, Could Apple Watch Data Prove Your Personal Injury Case?, Victimslawyer.com (May 4, 2015).
62See Michael Arnold & Dennis R. Kiker, Big Data Collection Problem of Little Mobile Devices, 21 Rich. J.L. & Tech. 10, 10-31 (2015).
63Fed. R. Civ. P. 34(a)(1)(A).
64Margaret Littman, Data From Wearable Devices Is Being Eyed as Evidence in the Courtroom, A.B.A. J. (Apr. 1, 2015, 4:00 AM CDT).
65See generally Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014).
66Neda Shakoori, Wearables: Your Next Trial Witness?, Daily J. (S.F., Cal.) (Dec. 10, 2014).
67Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) no. 5 (June 4, 2015).
68Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014).
69How Accurate is GPS?, Fitbit.com.
70Brett Hambright, Police: Fitbit Reveals Fake Report, LancasterOnline (June 19, 2015).
71Margaret Littman, Data From Data from Wearable Devices Is Being Eyed as Evidence in the Courtroom, A.B.A. J. (Apr. 1, 2015, 4:00 AM CDT).
72Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) No. 5 (June 4, 2015). See also How Accurate are Fitbit Trackers?, Fitbit.com; see also Nicole L. Black, Wearable Tech Data as Evidence in the Courtroom, LLRX.com (Sept. 23, 2015).
73Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014).
74See generally Neda Shakoori, Wearables: Your Next Trial Witness?, Daily J. (S.F., Cal.) (Dec. 10, 2014).
76Neda Shakoori, Wearables: Your Next Trial Witness?, Daily J. (S.F., Cal.) (Dec. 10, 2014).
77Alexander Howard, How Data From Wearable Tech Can Be Used Against You in a Court of Law, The Huffington Post (July 3, 2015, 12:59 PM EDT).
78See generally Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007).
79See generally Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007).
80Fed. R. Evid. 401.
81Sharon D. Nelson, John W. Simek & Thomas L. Mighell, What the Internet of Everything Means for Lawyers: Evidence, Privacy and Data Security Implications, American Law Institute (Feb. 9, 2015).
82Christina Bonnington, Data From Out Wearables Is Now Courtroom Fodder, Wired (Dec. 12, 2014, 6:30 AM).
83Fed. R. Evid. 901(a), (b)(1), (b)(3), (b)(9).
84Sheldon M. Finkelstein & Evelyn R. Storch, Admissibility of Electronically Stored Information: It’s Still the Same Old Story, 23 J. Am. Acad. Matrim. Law. 45, 48 (2010).
85Fed. R. Evid. 901(b)(1).
86Jill Schachner Chanen, What Everyone Is Wearing, A.B.A. J. 12, (Apr. 2015).
87Fed. R. Evid. 901(b)(9).
88Fed. R. Evid. 403.
89Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007) (citing St. Clair v. Johnny’s Oyster and Shrimp Inc., 76 F. Supp. 2d 773, 773 (S.D. Tex. 1999)).
90Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007).
91Fed. R. Evid. 702.
92Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-95 (1993).
93Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) No. 5 (June 4, 2015).
94Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993).
95Kate Crawford, When Fitbit Is the Expert Witness, The Atlantic (Nov. 19, 2014); Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM).
96Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993).
97Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993).
98Elizabeth Sorenson Brotten, “Every Move You Make, Every Step You Take, I’ll Be Watching You”: Is Wearable Data Your Next Discovery Tool in Personal Injury Litigation?, 11 Newsl. Young Law. Committee (DRI Young Lawyers Committee) No. 5 (June 4, 2015).
99See Erik Harris, Discovery of Portable Electronic Devices, 61 Ala. L. Rev. 193, 193-222 (2009); Serge Jorgensen, Convergence of Forensics, Ediscovery, Secure, & Law, 12 Ave Maria L. Rev. 291, 291-311 (2014).

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Grant M. Rost1 1 Grant M. Rost is an Associate Instructor of Lawyering Skills at Liberty University School of Law. Mr. Rost would like to thank his research assistant, Micah Long, for his hard work and excellent research. Mr. Rost is extremely grateful to Kathy Shaibani for her proofing and critique. He also wishes to thank his colleagues who offered their guidance and encouragement, with particular gratitude to Steve Rice whose refining eye helped Mr. Rost to see more clearly the signposts his draft needed. Finally, Mr. Rost would like to thank the Articles & Book Reviews Editor of our law review, Hannah Phillips, who came in late in the process and did yeoman’s labor. Mr. Rost would like to say that working with students like Micah and Hannah are part of the blessings of being a law professor.

4 Stetson J. Advoc. & L. 54 (2017)

I. Introduction

Trial lawyers practice their craft before juries within certain well-established constraints: A juror’s attention is naturally limited, and many necessary components of a trial are tedious enough to tax the concentration of the most diligent jurors. Yet without a juror’s attention, trial lawyers have no fertile ground in which to plant their case. Trial lawyers sense that storytelling in trials can help in the struggle to capture a juror’s attention, but the impediments to good storytelling are many, from the time constraints a lawyer faces while preparing the case to the limits of the lawyer’s own imagination. This article will suggest ways to expand that imagination by encouraging trial attorneys to think a little differently about how they envision the power of the story in their cases. In so doing, this article will identify ways to help trial lawyers grab a jury’s attention and persuade them by appealing to a most natural human appetite—the appetite for wonder.
Too often trial lawyers see a case as a mere chronology of facts. This article will argue that the stories embedded in every case can illuminate far more than simple chronology and cause and effect. These stories can catch a juror’s attention by calling out to the human need and capacity for wonder. As trial lawyers, we present our cases before jurors as stories with conflict and drama because we know that stories are persuasive. Can we improve our storytelling? Can we identify simple ways to find wonder in our stories and use it to hold the jurors’ attention and persuade them? I will argue that we can improve our storytelling and find wonder in our case if we expand our definition of wonder and expand the metric by which we try to identify it in the facts of our case.
For the sake of usable, memorable shorthand, I propose three measurements to help us find wonder in our cases as we prepare them: campfires, car accidents, and the cosmos. Are there facts that can mesmerize our jury like a campfire mesmerizes those who sit around it? Are there facts that reveal the morbid nature of the injustice done to our client—facts our jurors cannot seem to look away from in the same way people can’t look away from a car accident? Finally, are there facts or arguments that invoke such lofty or grand sentiments that we begin to sense the magnificence of justice, like we sense the magnificence of the cosmos when looking at the night sky?

II. The Distractions of Inattention

Before engaging in a quest to capture a juror’s attention, it will help to understand the problem of attention modern trial lawyers now face. Every trial lawyer has seen an inattentive juror. Jurors’ faces, gestures, and posture can reveal their attention and inattention and provide usable feedback. If a trial lawyer senses he’s losing his jury, he can try to gain back their attention. But do we understand precisely what it means for a juror to pay attention in trial? Researchers argue that attention is more than just sustained concentration.2 2 Tom Stafford & Matt Webb, Mind Hacks, 113 (2005). Rather, attention is the way the brain allocates its limited processing resources.3 3 Tom Stafford & Matt Webb, Mind Hacks, 113 (2005). In other words, the brain can only do so much at one time, and attention is the sorting machine that prioritizes the work. When the brain is working too hard, as it might while someone is focusing on a task like listening and learning, small distractions that are irrelevant to the main activity can actually be more distracting to one’s attention.4 4 Nicholas Carr, The Shallows: What the Internet is Doing to our Brains 125, 141 (2011). Thus, a juror who is mentally drained after hours of testimony might be more easily distracted by irrelevant environmental stimuli in the courtroom.
This deficit in human attention is apparently magnified in the modern brain which has become accustomed to multitasking among a flood of 21st-century stimuli. Professor and author Sven Birkerts says that “[in] our own inevitable adjustments to the stimulus barrage of modern life—all the editing, skimming, compartmentalizing, accelerating—and the increasing psychological assault of others using their devices, we find it ever harder to generate and then sustain a level of attention—focus—that full involvement ... requires.”5 5 Sven Birkerts, Change the Subject: Art and Attention in the Internet Age 7 (2015). In the context of the “digital” brain’s dwindling attention span, a trial lawyer has to capture jurors’ attentions and work a case into their memories. Author and technology critic Nicholas Carr argues that attentiveness is the key to making memories and that the sharper one’s attention is on a task, the sharper his memory will be.6 6 Nicholas Carr, The Shallows: What the Internet is Doing to our Brains 125, 141 (2011). But how can a trial lawyer compete against all the stimuli in the courtroom and gain sharp, focused attention from his jurors?

III. The Attractions of Wonder

Before addressing practical ways to find wonder in the story of a case, it is first necessary to define the concept of wonder. The subject has received scant attention from scholars but steady popular treatment from naturalists, scientists, and theologians.7 7 See generally Rachel Carson, The Sense of Wonder (1998); Richard Dawkins, An Appetite For Wonder: The Making Of A Scientist (2013); Richard Dawkins, unweaving the rainbow: science, deluion, and the appetite for wonder (2000); Ravi Zacharias, Recapture The Wonder (2005). In a speech to The Aristotelean Society, R. W. Hepburn noted that ancient philosophers arrived generally at a belief that wonder was something more persistent than an “emotional response to some baffling phenomenon or disturbing discontinuity in experience.”8 8 R.W. Hepburn, The Inaugural Address: Wonder, 54 Proceedings of the Aristotelian Society 1, 3 (1980). Hepburn nicely distilled Kant’s view of wonder as something more than a plain feeling of enchantment, noting Kant’s qualitative distinction “between astonishment (Verwunderung) which fades as a sense of novelty diminishes, and wonderment that is steady and unthreatened (Bewunderung).”9 9 R.W. Hepburn, The Inaugural Address: Wonder, 54 Proceedings of the Aristotelian Society 1, 3 (1980). See also Immanuel Kant, Critique of Aesthetic Judgment 125 (1911). Just as Plato saw wonder as the beginning of philosophical discovery, the eminent conservationist Rachel Carson wrote about wonder as the necessary fuel for a child’s quest for knowledge about the world and her place in nature. She described a child’s spark of wonder as “that clear-eyed vision, that true instinct for what is beautiful and awe-inspiring.”10 10 Rachel Carson, The Sense of Wonder 56 (1998).
In The Sense of Wonder Carson lamented that the sense of wonder is “dimmed and even lost before we reach adulthood.” This thought is shared by the modern theologian, Ravi Zacharias, in his book Recapture the Wonder.11 11 Rachel Carson, The Sense of Wonder 56 (1998). He adds his own definition of wonder:

Wonder is that possession of the mind that enchants the emotions while never surrendering reason. It is a grasp on reality that does not need constant high points in order to be maintained, nor is it made vulnerable by the low points of life’s struggle. It sees in the ordinary the extraordinary, and it finds in the extraordinary the reaffirmations for what it already knows.12 12 Rachel Carson, The Sense of Wonder (1998).

Among scientists, one can find similarly lofty language about the power of wonder to capture our thoughts. Even the often sharp-tongued atheist Richard Dawkins softens when speaking about wonder. In his autobiography, Dawkins says:

The feeling of awed wonder that science can give us is one of the highest experiences of which the human psyche is capable. It is a deep aesthetic passion to rank with the finest that music and poetry can deliver. It is truly one of the things that make life worth living ... .13 13 Richard Dawkins, Unweaving the Rainbow: Science, Deluion, and the Appetite for Wonder (2000).

These definitions seem to suggest that a person’s capacity for wonder is always reaching toward the magnificent or awe-inspiring. Zacharias seems to be the lone exception, willing to embrace wonder as a range of feelings that might also include astonishment. In this, I agree. I think there are many kinds of feelings or sensations we have which fall on the continuum of emotions and which we would describe as wonder. If these different levels of intensity of wonder are not on the continuum of human emotions and feelings, then perhaps they should be. Why? It seems to me that, unlike Kant, people usually think of wonder in a broad way. We don’t immediately think of wonder as something that only happens to us when we consider the vastness of space or look at images from the Hubble telescope. We don’t usually share our emotional states with each other by parsing them out philosophically. How often have you watched a child breathing in the spray of Niagara Falls say, “Wow!” only to see her parent follow up that exclamation by enquiring whether she is merely astonished or experiencing the something-more we might label “wonder”? I doubt such an interaction has ever happened between parent and child. We just don’t make these distinctions when we think about wonder and, therefore, we don’t see others making them. So, for the sake of good storytelling in a trial, we should aim for the whole continuum of wonder and not merely try to reach past some dividing line where Kant imagines wonderment begins. Before thinking about appealing to a juror’s sense of wonder in trial, we need to answer a foundational question first: If wonder can be found or felt in the crush of Niagara Falls, can it be found or felt as a result of hearing a story?

A. What does it mean to be “transported” by a narrative?

We have all experienced becoming so engrossed in a story—perhaps a favorite novel or an absorbing movie—that we lose our sense of time or the immediate awareness of our environment. It’s even possible to be pulled in to such an extent that we lose the sense of being outside of the story. In 2010, CNN reported that fans of the popular movie Avatar were generating hundreds of posts on a fan-based internet forum describing their depression and withdrawal-like symptoms after watching the movie. These fans struggled to come to grips with the fact that the fictional world in the movie was not real or attainable. One contributor to the discussion thread said, “[w]hen I woke up this morning after watching Avatar for the first time yesterday, the world seemed ... gray. It was like my whole life, everything I’ve done and worked for, lost its meaning.” He had felt transported to this alien world, and CNN confirmed he had been emotionally struggling since he left that world behind at the darkened theater.14 14 Jo Piazza, Audiences Experience 'Avatar' Blues, CNN (Jan. 11, 2010).
Though the magnitude of this kind of depression might seem foreign to us, this feeling of having been somewhere else as a result of being engrossed in a story is scientifically well-established.15 15 See generally Markus Appel & Tobias Richter, Transportation and Need for Affect in Narrative Persuasion: A Mediated Moderation Model, 13 Media Psychol. 101 (2010); Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701 (2000); Philip J. Mazzocco, Melanie C. Green, Jo A. Sasota, Norman W. Jones, This Story is Not for Everyone: Transportability and Narrative Persuasion, Soc. Psychol. and Personality Sci. (2010). Researchers call this level of engagement with a narrative “transportation.” Transportation into a narrative world is a “distinct mental process, an integrative melding of attention, imagery, and feelings ... where all mental systems and capacities become focused on events occurring in the narrative.”16 16 Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 701 (2000). If the term “wonder” describes the sense of rapture we feel when we have profound encounters with the natural world, and “transportation” describes the rapture we experience in profound encounters with the narrative world, then perhaps transportation and wonder are descriptive twins—identical in the genes, but occupying two distinct phenomenological spaces. This is my contention—that transportation into a narrative is how we experience wonder when we hear good stories. Thus, when a trial lawyer tells a story to a jury, her goal should be for each juror to be transported by her tale. As we will see, transportation into a narrative does not simply absorb the reader or listener’s attention, it can significantly affect what they believe. What follows will not be an exhaustive study of transportation theory but a summary of some of the research to demonstrate the persuasive effects of transportation by narrative.

B. What effects correlate to transportation from a narrative?

One of the most commonly cited studies on transportation was published in 2000, conducted by Melanie Green and Timothy Brock of Ohio State University. In brief, the study tested whether subjects could be persuaded to hold general beliefs about the world and particular beliefs about truths in the story simply through exposure to a narrative. The study attempted to correlate the strength of the subject’s feeling of transportation into the narrative with the strength of the beliefs the subject generated as a result of the narrative. To test this query, the authors instructed numerous subjects to read various kinds of stories. Some of the stories contained dramatic narratives—tales of murder and woe—and others did not. The most dramatic story concerned a psychiatric patient, freed by the courts, who brutally stabs a young girl while she innocently shops at the local mall with her college-aged sister. After reading or hearing the story, subjects were surveyed about the degree to which they felt transported into the narrative and whether some of their beliefs, implicated in the narrative, had changed as a result. Some of the beliefs tested related specifically to the story, such as whether psychiatric patients should enjoy certain freedoms in society and whether violent attacks are likely to occur in public places. However, more nebulous beliefs were also tested, such as the subjects’ belief in a just world. Control groups read a story in which the young girl was not murdered but was simply overcome with giggles after encountering a playful clown blowing bubbles.17 17 Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 701, 705 (2000).
What is fascinating about this study is not simply its demonstration of the persuasive power of storytelling, but its finding that the magnitude of transportation into the narrative affects the strengths of beliefs coming out the narrative. Highly transported subjects showed significant effects upon both their story-specific and general-world beliefs. For example, highly transported subjects more frequently stated that violence was likely to occur in public places, and they were more likely to conclude that the world was less just. Highly transported subjects were also more likely to endorse restrictions on the freedoms of psychiatric patients. The study revealed that higher-quality, compelling stories were more likely to achieve higher levels of transportation—perfect motivation for the trial lawyer to tell a more compelling story in trial.18 18 Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 706, 713, 718-19 (2000).
Perhaps here the reader might draw upon her own experience reading rich narratives and protest that written narratives seem to be naturally transporting, whereas a trial lawyer must tell the client’s story orally without the benefit of imagery-filled prose on a page. Green and Brock argue that subjects experience transportation regardless of how they interact with a narrative, whether it be written, oral, or visual.19 19 Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 702 (2000); See e.g. Markus Appel & Tobias Richter, Transportation and Need for Affect in Narrative Persuasion: A Mediated Moderation Model, 13 Media Psychol. 101, 104 (2010). The reader might further protest that subjects in the study were likely to be transported by the story and moved in their beliefs about the world because the story bore the hallmarks of a news story and was therefore construed as nonfiction. However, Green and Brock found that even when subjects confirmed before testing that they knew the story to be fictional, high levels of transportation still occurred and beliefs were affected as a result.20 20 Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 707 (2000). In a related study, Appel and Richter confirmed the transportation and persuasive power of fictional narratives and enumerated other studies that prove fiction’s power to transport and persuade.21 21 Markus Appel & Tobias Richter, Transportation and Need for Affect in Narrative Persuasion: A Mediated Moderation Model, 13 Media Psychol. 101, 112, 119 (2010).
Finally, a trial attorney thinking how he might use a rich story to transport jurors and persuade them to his cause might rightfully ask about the extent of the benefit. In other words, is a transported juror affected at an emotional level only by the narrative, or is he actually more inclined to accept the facts in the narrative as true? Green and Brock found that subjects reporting high transportation were more likely to accept the story they read and were “less likely to doubt, to question, or to engage in disbelieving processing.”22 22 Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 711 (2000). There are other cognitive influences that can serve to moderate the feeling of transportation as well as the effects of transportation which the reader may choose to study for a deeper understanding of narrative persuasion generally.23 23 See generally Markus Appel & Tobias Richter, Transportation and Need for Affect in Narrative Persuasion: A Mediated Moderation Model, 13 Media Psychol. 101 (2010); Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 707 (2000). However, a thorough explanation and analysis of each of these moderators reaches beyond the framework of this article.

C. Concluding thoughts on defining wonder

Wonder seems to be a rather slippery concept. Each of us probably supposes that we know wonder when we feel it, though we might struggle to describe the feeling in greater detail than using apparent synonyms like “awe,” “rapture,” or “transport.” Though none of the researchers of persuasion cited above have stated definitively that good stories create wonder, or that transportation into a narrative is a way of experiencing wonder, this article contends that one can feel wonder after absorbing a rich or mysterious story. After all, the scientist who argues that people ought to feel a sense of wonder in their sensory interaction with the universe can hardly maintain that origin stories of singularities and big bangs are not also wonder-inducing. Similarly, the theologian who asserts that humans find wonder in God’s creation would be hard-pressed to argue that wonder cannot also be found by immersing oneself in the creation story of Genesis.

IV. Intermezzo

I pause here to share my own views of wonder, because unlike philosophers, scientists, and theologians, I think of wonder as a feeling that is broader than the sensations we experience when encountering the wondrous in nature or in higher truth. If we believe wonder is within the continuum of human emotions, and if we accept human emotions as a real force in persuasion and belief, then wonder should be achievable in a courtroom—where the cognitive, the spiritual, and the personal are all engaged to varying degrees. I wish to make wonder useful to the trial lawyer, because I think it is useful to a juror. What a juror conceives as wondrous will, by definition, hold his attention, which helps him fulfill his service. A trial lawyer with wonder in her toolbox should, at the very least, aspire to use wonder to help keep her jury attentive.
I do not wish to make wonder a small or lowly concept by suggesting it can be something other than the grandest awe we might experience. On the contrary, I want to make wonder large—large enough that trial lawyers can imagine more ways in which jurors are able to engage with testimony and storytelling in trial. I believe jurors are drawn to wonder, which works its way into their attention and imagination through the mesmerizing, the morbid, and the magnificent. So, I turn to my three shorthand indicators for wonder: the campfire, the car accident, and the cosmos.

V. The Mesmerizing Campfire

Have you ever sat around a fire, large or small, with a group of people? What did you notice about yourself as you sat in its warmth and glow? What did you see in the faces of those who watched the flames dance off the embers and hungrily lap at the stacked wood? If experience is any teacher, you saw people lit up like a movie-theater crowd and mesmerized by the fire. You felt yourself staring into the flames, watching their movement, and you became so engrossed in them that they filled your consciousness, leaving little room in your thoughts beyond the bursts of their oranges, yellows, and reds. You listened attentively to the crackling and snapping of the fuel, and you traced the rising ash as it shot up from the fire and fizzled into the darkness of night. As you readied for bed, even the scent of the fire on your discarded clothes brought back the same feelings and images.
But this kind of experience is not unique to the fireside, is it? You sensed that same wonder and absorption for a moment when you sat on your grandparents’ porch and listened to a long, loud roll of thunder from an approaching storm. When the sky stopped grumbling, your grandfather leaned in close and told you that lightning itself only creates one sound when it snaps down from the heavens but that the drawn-out bellow of thunder was caused by the march of sound across the sky and into your ears. The bit of lightning closest to you is what you heard first and the distant branch of the lightning furthest from you was the final rattle before silence. That long roll of thunder you heard was the whole width of a branching bolt—the sound of lightning tendrils a mile wide!24 24 Bob Berman, Zoom: How Everything Moves: From Atoms and Galaxies to Blizzards and Bees (2014). Undoubtedly, your grandparents spun other tales for you on that porch that gripped your thinking and held your mind briefly in a kind of low-flying wonder. You punctuated their stories with wide eyes and a whimsical, “Huh! How about that.”
So it can be for a trial lawyer armed with some interesting facts. For example, imagine you are a prosecutor who needs to prove that the defendant in your case was with the murder victim’s body and that he was undoubtedly the one that drove it 600 miles, two states away from his own residence, to dump it in a piney woods. The defendant was a careful criminal who claims he has never even been in the same state as that piney forest, and you only have other small bits of circumstantial evidence to prove your case. You have a forensic expert who found a tiny fungus spore on a speck of dust lifted randomly from the seat of the defendant’s car. Your expert shares with you that the DNA from the fungus spore can be matched to a database of fungi spores collected off of 928 separate bits of dust from around the country.25 25 Meghan Rosen, Wanted Crime-solving bacteria and body odor, Science News 26 (Sept. 5, 2015). The database is so accurate, it has the capacity to pinpoint the genetic origin of the fungus within 230 kilometers or 142 miles. In pretrial, the judge permits the testimony. Your expert will testify that the fungus riding on the dust, which rode in the defendant’s car, originated in the area of the piney forest 600 miles away.
Immediately, you can sense the persuasive appeal of the testimony: Match the fungus to the location of the body, prove the defendant lied in his jailhouse interview, and argue on close that he lied to police and was almost certainly the one who dumped the body. But is this enough to grip the jury and persuade them? How should the lawyer introduce the evidence to the jury during opening statements to grab their attention and capture their thinking? Let us consider one possible snippet of opening statement; one we might consider typically pedestrian for this kind of evidence:

Members of the jury, you will hear that the Anytown investigators found a speck of dust in the defendant’s car. Based on the fact the victim was dumped in the woods, they relied on their knowledge of DNA technology and decided to see if this dust carried any fungi spores on it. This new technology, as you will hear, can trace the DNA in a fungus spore to its location of origin by comparing that DNA to a giant database of DNA that comes from fungi samples collected from all over the United States. You will hear from Dr. Tyson DeGrasse, our forensic science expert in this case. Dr. DeGrasse will explain to you how accurate this method of DNA testing is. He will tell you that it can pinpoint the origin of a fungus spore to within 142 miles. Dr. DeGrasse will tell you that he personally received the fungus sample from the defendant’s car, that he then extracted the DNA from the fungus, and that he matched the DNA in that fungus to the DNA of the fungi found in the region of the piney forest. Thus, members of the jury, we will prove to you that the dust in the defendant’s car came from that piney forest, and therefore places the defendant’s car in that piney forest where the victim’s lifeless body was dumped.

You might say to yourself, “Yes, I have heard opening statements like that before.” Perhaps you might even admit to giving an opening statement like this before. Where does it go wrong? It goes wrong by merely verbalizing the way the mind of the trial lawyer works when her mind is on task. It connects what needs to be known to that which is known and it does it quickly enough that the jury will hear both in just a few breaths. There is no time between the unknown and the known for wonder to germinate. Our hypothetical attorney has not taken the time to eliminate the repetitions of “you will hear” and “we will prove” to mesmerize the jury with the wonder of what is actually happening in this case: The fungal backpack on a traveling piece of dust has been upended by the inquisitive Dr. DeGrasse, and its contents are spilled out for all to see. The contents of the fungal backpack tell a tale about the long road that the dust has traveled. It is a blood-covered road that winds and twists its way through a piney forest, over the bumps and boundary lines of two states, and ends at the defendant’s driveway. So in the opening statement, for the sake of creating some wonder, the prosecutor should not present Dr. DeGrasse to the jury merely as an expert but rather as the author of a small story of large justice. It is really the story of a piece of dust that drove 600 miles to tattletale on a murderer.
Finding that mesmerizing wonder in a case is often a process of finding the story within the evidence, not merely the story created by the evidence. The story created by the evidence is the theory of the case, and of course that theory must be made plain to the jury. However, the story within the evidence is the kind of narrative that can captivate. It offers us the opportunity to be creative storytellers and to make something really special happen in the courtroom, something the jury will really remember. We can seize upon these moments for use in the larger story of opening statement or as part of the story which pours out during a well-prepared direct examination which shows how our expert uncovered a damning truth. We can also use mesmerizing wonder during closing arguments by telling a rich personal story that illustrates, by analogy, a high truth to our jury.
One of the best examples of a mesmerizing personal story is one I might have expected the former trial lawyer and Cook County Circuit Court Judge Eugene Pincham to tell around a campfire. The story is recounted by James McElhaney in a chapter of his textbook dedicated to using analogies in closing argument.26 26 James W. Mcelhaney, McElhaney's Trial Notebook 683 (2006). The story is about a young Mr. Pincham stealing small spoonfuls of sugar out of his mother’s large sugar barrel in order to make a big, sweet treat—modest by the standards of desserts today. Mr. Pincham grew up in the poor, rural South, and sugar was extremely important in his mother’s kitchen because it had so many uses. It was so important that they bought sugar by the barrel and not by the bag. Mr. Pincham’s mother would occasionally make a milkshake for him, a little concoction of nothing more than milk, vanilla, and a spoonful of sugar. Pincham says, “We didn’t like to wait [to have the milkshake]. Sometimes we would fix one when we came home from school—and that was against [my mother’s] rule: ‘Stay out of my sugar!’” Pincham describes the great care he took to cover his tracks when he stole sugar: putting the spoon back just the way he had found it, smoothing over the surface of the remaining sugar, and washing up the “evidence”—the dirty glass—after guzzling the treat. But his mother always knew he took the sugar, and no matter how careful he was, he always got caught. How did he get caught? It has you wondering, doesn’t it? The story has you intrigued.
What makes the story mesmerizing? The same factor that unites almost everything that intrigues us: an encounter with something outside of our element, our experience, or our knowledge. In short, it is wonder. You likely had no barrel of sugar in your kitchen growing up, and the size and temptation of it to your long-gone adolescent mind is interesting to you even now. You were probably never so poor that sugared milk was a treat for which you would risk limitless spankings from your angry mother. The story also carries within it a secret—how his mother knew he was stealing—and it sustains that mystery over the course of the story, carefully using that mystery to keep the listener wondering.

VI. The Morbid Car Accident

We have all been stuck in slow traffic on the highway. If we have all been stuck in traffic, there is a very good chance that the cause of the slowdown was an accident. Often the accident is on your side of the highway, and one or more lanes are blocked by the wreck itself and by the sprawl of first responders. However, the wreck isn’t always on your side of the highway, and the thing that is actually affecting your commute is the line of motorists in front of you who are braking to take a look at the wreckage. If you’re anything like me, you promise yourself you won’t look once your car pulls up to the scene. We aren’t the kind of people who slow down and hold others up. Nonetheless, there is something that draws our eye as we pass. Our brain registers and processes something off in the periphery over the median to our left: a hunk, a mass, a mass of metal. No, it’s a mash of twisted metal! Then, we look. We’ve joined the long line of voyeurs who are now lurching away into the distance, gradually regaining highway speed.
It is difficult to find authors who have treated this subject at length, but Eric Wilson, a professor of English at Wake Forest, devoted an entire book to the subject of the human desire to stare at the morbid, the train wreck, the tragic.27 27 See generally Eric G. Wilson, Everyone Loves a Good Trainwreck: Why we Can't Look Away (2012). Of the rubbernecking commuter passing the scene of an accident, Wilson says:

I imagine we’ve all felt that kind of guilty rush before the morbid. The exploitation of a suicidal starlet, the assassination of a world leader; the hypnotic crush of a hurricane, the lion exploding into the antelope; the wreckage and the rapture, the profane and the sacred: whatever our attraction, we are drawn to doom.28 28 Eric G. Wilson, Everyone Loves a Good Trainwreck: Why we Can't Look Away 8 (2012).

A. Clarifications for the purposeful use of the morbid or the tragic

I wish to first make clear how I use the words “car accident” and “morbid” in the discussion to follow. “Car accident” serves as shorthand for a family of cases in which there is some sort of injury to person, property, or law. I conceive it broadly because I think of court-case injuries as injustices inflicted upon one by another. Thus, the divorce of a cheating spouse, the murder of an individual, and the ruthlessly efficient breach of a contract all resemble a “car accident” at which jurors can slow down to gawk—all while serving their duty in the jury box. “Morbid” is used as a categorical heading to describe the tragic, horrific, eye-opening facts of these various car accidents and their legal kin. Thus, in a contract breach, the morbid facts might be testimony or corporate memos that demonstrate the ugliness or impurity of the breaching party’s motives. In a murder case, sadly, morbid facts may be exactly what we would imagine such facts to be. Murder cases are usually full of them, and attorneys probably do not have to stretch to find ugliness or tragedy to include in a powerful, transporting narrative.
The reader might protest here that there is something itself ugly about trial lawyering if we start actively thinking of ways to use morbidity as a manipulative tool—flaunting the morbid in the belief that jurors will be compelled to look. Before that thought takes hold, a few truths about trials should be acknowledged: First, trial lawyers deal in catastrophes of greater and lesser degree, and they have an obligation to reveal the tragedy to the jury because the tragedy is a symptom of the injustice the jury will be asked to address.29 29 See, e.g. Michael S. Lief, H. Mitchell Caldwell, & Benjamin Bycel, Ladies and Gentlemen of the Jury 153-56 (1998). Second, meditating on the power of the morbid or the tragic in a case does not necessarily mean that we must seek out ways to splash horrifying images across the courtroom or recount for the jury the seediest, ugliest details of the case. Professor and ABA Journal contributor Phillip Meyer demonstrates this truth through his treatment of W. G. Sebald’s story, The Emigrants, in his popular book about legal storytelling, Storytelling for Lawyers. Sebald’s story lets the reader see the horrors of electroshock therapy treatments upon a patient in a sanitarium, not by describing the procedure itself, but by artfully and carefully describing how the patient looked and acted afterward.30 30 Philip N. Meyer, Storytelling for Lawyers 164-69 (2014). The story loses no power by omitting the horrific acts themselves and likely finds its real power in what the reader imagines about the undescribed treatments.
Our purposes in examining the car-accident qualities of a case, to keep the specter of the morbid before us as we prepare for trial, are threefold: First, we have to keep our eyes on the real harm resulting from the injustice to our client. Through the voice of his infinitely wise trial guru, Angus, James McElhaney says that to get a jury to focus their judgment on the opposing side is to “focus your side of the trial—and all of its individual parts—on the moral imperative, the wrong that needs to be set right.”31 31 James W. Mcelhaney, McElhaney's Trial Notebook 46 (2006). How can we get the jury to fully absorb our client’s harm and imagine it as their own? We have to focus on that harm ourselves and find out how we can reveal it to the jurors as that moral imperative.
Second, our failure to reveal the magnitude of the injustice might mean that the jury will not appreciate how far they must go in their verdict to right the wrong. In many ways, the magnitude of the ugliness, injury, or horror within a case helps the jury gauge the magnitude of the injury. For Gerry Spence, it apparently was not enough to simply point out to the jury that radiation exposure can cause cancer and that the defendant in the Silkwood case (a plutonium processing corporation) was careless with its radioactive materials. Doing only that is like drawing a sketch by simply connecting factual and legal dots.32 32 Michael S. Lief, H. Mitchell Caldwell, & Benjamin Bycel, Ladies and Gentlemen of the Jury 127-57 (1998). By contrast, here is a portion of Spence’s closing argument in which he builds the horror of the case to reveal to his jury the magnitude of the defendant’s injustice:

Maybe you get so numb after a while—I guess people just stand and say, “Exposure, exposure, exposure, exposure, exposure—cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer,” until you don’t hear it anymore. Maybe that is what happens to us. I tell you, if it is throbbing in your breast—if cancer is eating at your guts, or it’s eating at your lungs, or it’s gnawing away at your gonads, and you’re losing your life, and your manhood, and your womanhood, and your child, or your children, it then has meaning—they are not just words. You multiply it by hundreds of workers, and thousands of workers, that is why this case is the most important case, maybe, in the history of man.33 33 Michael S. Lief, H. Mitchell Caldwell, & Benjamin Bycel, Ladies and Gentlemen of the Jury 135-36 (1998).

Our final purpose for thinking about how we might use the wonder-power of the morbid elements of our case is that, like all the other kinds of wonder we discussed, it has an attention-grabbing effect on the mind.34 34 See generally Eric G. Wilson, Everyone Loves a Good Trainwreck: Why we Can't Look Away (2012). We must first have the jury’s attention before we can tell them a story, offer them evidence, and persuade them. Wilson reports on a study of morbid curiosity and attention spans that concluded that morbid curiosity causes a physical arousal and that humans are drawn to negative news stories out of a desire for stimulation.35 35 Eric G. Wilson, Everyone Loves a Good Trainwreck: Why we Can't Look Away (2012) (citing Kevin Pinkerton & Shuhua Zhou, Ph. D., Effects of Morbid Curiosity on Perception, Attention, and Reaction to Bad News, 7 The Univ. of Ala. McNair J. 129 (2007)). I would never argue that we should find deviant enjoyment in the morbid or tragic elements of a case, but it is useless to deny that such facts have power in vivid storytelling.

B. Use of the morbid in legal storytelling

Three days before Christmas in 1984, an unassuming electrical engineer by the name of Bernhard Goetz pulled out a concealed pistol and shot four African-American males on a New York City subway. At the scene, Goetz told a subway conductor that the four wounded men had tried to rob him. The ensuing media swarm painted the shooter as an innocent victim of subway bullying who refused to become another statistic of the rampant crime in New York City.36 36 Richard Stengel, A Troubled and Troubling Life, Time (Apr. 8, 1985). Tabloids nicknamed him the “Subway Vigilante.”37 37 Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years 164 (2005). However, the picture of Goetz as David fighting against the Goliath of subway criminals began to fade as testimony from his police interrogation leaked into the press. Goetz himself championed his own cause with public appearances and interviews, but the additional attention brought more calls to reopen the failed prosecution for attempted murder.38 38 Richard Stengel, A Troubled and Troubling Life, Time (Apr. 8, 1985). Goetz was indicted with new evidence on this second attempt and went to trial for unlawful possession of a firearm and the attempted murder of the four men he shot. Goetz pled self-defense, and the prosecution faced the uphill battle of convincing a jury that the young men, three of whom had criminal records, did not deserve the rough justice Goetz had meted out on the subway.39 39 Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years 164-65 (2005).
Gregory Waples gave the opening statement for the prosecution and turned immediately to the callous facts of the shooting. Waples used the disturbing facts to slowly build to a horrific admission—a confession of callousness given to the police by Goetz himself. Here is Waples recounting the events in the subway car:

Most of the passengers in that car were preoccupied with their own affairs, minding an infant child, reading, dozing, or contemplating a holiday season. Suddenly, however, that day that had begun so ordinarily turned into a nightmare. Suddenly every passenger on that train was jolted by the electrifying and terrifying spectacle of Bernhard Goetz standing on his feet, firing shots in every direction from a gun he was holding in his hand.
In a brief convulsion of violence, the defendant deliberately shot and seriously wounded four young men who had been riding on that train long before he boarded that car. He also fired a fifth shot, which missed its intended human target, struck the metal wall of the subway car, and then ricocheted about the car’s interior. Providence alone prevented any of the many innocent men, women, and children from being killed or seriously injured by the defendant’s wild shooting.
By the defendant’s own admission, tape-recorded admissions that will be played for you at this trial, at least two of the four young men shot were trying to run away when he gunned them down. In fact, you will hear from medical evidence in this case that two of the four young men whom the defendant shot were shot in their backs, one squarely in the center of the back as he tried to flee, another shot under the shoulder blade by a shot that traveled laterally across his body.
By far the most severely injured of all of the four wounded youths was a 19-year-old by the name of Darrell Cabey. The evidence will show that the defendant fired two separate shots at Darrell Cabey that same evidence will show, beyond the slightest shadow of a doubt, that when the defendant fired the second of these shots at Cabey, Darrell Cabey was sitting down on the subway seat, much like you are sitting in your jury seats now, absolutely helpless and doing absolutely nothing to threaten Bernhard Goetz.
Shockingly you will hear the defendant admit [that] before this last shot was fired at the seated and helpless Darrell Cabey, the defendant advanced on him as he was sitting in the seat and said, “You look all right, here’s another.”

The bullet which actually did strike Darrell Cabey caused massive injuries to his body; it severed his spinal cord. As a consequence, since December 22, 1984, Darrell Cabey has been paralyzed from above his waist down and can look forward to the rest of his life, if that’s the best way to characterize it, living in a wheelchair.40 40 Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years 165-66 (2005).

It is not difficult to see what Waples does well in recreating this scene. The passengers are serene and unsuspecting, perhaps dreaming about Christmas Day; the invocation of the approaching holiday evokes childhood and innocence. The serenity is shattered with the “spectacle” of Goetz shooting “in every direction” in the cramped space of the subway car. Waples punctuates the change in the scene by starting two consecutive sentences with the always-active, sometimes-tragic word “suddenly.” Waples’s word choice is vivid. This was not a man just shooting a gun, it was his “convulsion of violence.” The story clearly describes the horror of victims in retreat, and the classic action of a coward, shooting a man in the back, is recounted for the jury three times. This leads to the most cowardly action of all: shooting a seated man and suggesting to him before the shot that he wasn’t injured enough. Waples ends this portion of his opening statement by describing the most devastating injury suffered by the four victims: Cabey would have to live out the rest of his days in a wheelchair.41 41 Waples’s transporting narrative was not enough to get a conviction on any charge except one: possessing an unlicensed firearm. “Though he used ingenious strategies, Mr. Waples was pitted against what proved to be the insurmountable hurdle of public sentiment.” Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years 178 (2005).

C. Is there a redeemable use of the morbid?

At the end of his book, Eric Wilson discusses the surprisingly profitable business of “dark tourism.”42 42 See, e.g., Eric G. Wilson, Everyone Loves a Good Trainwreck: Why we Can't Look Away 154-56 (2012). Dark tourism describes the industry that gives money-paying customers guided tours around sites of tragedy. The industry is not merely confined to sites of sensational violence. We might expect dark tourism to consist largely of tours to places like the infamous murder scenes of Sharon Tate, or Nicole Brown Simpson and Ronald Goldman.43 43 Tate and her unborn child were murdered by followers of Charles Manson. See Lily Rothman, Read TIME’s Report of the Grisly Sharon Tate Murder, Time (Aug. 9, 2015); Simpson and Goldman were allegedly murdered by professional football star O.J. Simpson who was famously acquitted of both murders. See Full Coverage: The O.J. Simpson Case, LA Times (Mar. 4, 2016). If you, like me, have ever toured the thoughtful and heartbreaking National September 11 Memorial and Museum in New York City, you might be surprised to find out that you are also a paying contributor to dark tourism.44 44 Eric G. Wilson, Everyone Loves a Good Trainwreck: Why we Can't Look Away 154-56 (2012).
As part of his quest to discover why humans are drawn to the tragic, Wilson went on a paid tour of the most devastated areas of New Orleans after Hurricane Katrina. Wilson’s guide on the tour, a New Orleans native who fled before Katrina hit, stopped a few times during the tour to weep for his own city. Wilson’s wife, who joined him on the tour, could not keep herself from being overcome by the stories of suffering and tragedy that had taken place on the streets the tour bus traveled. Wilson says, “Near the end of the [tour], exhausted and raw and tender, she found herself tearing up when the guide wept. The tragedy of New Orleans had come to harrowing life for her, and she was transformed ... .” They talked about their experience on the tour with the guide, and when Wilson’s wife confessed that they had taken the tour as part of their research for a book, the guide responded with understanding, saying that the only negative review he had ever had for the tour was from a customer who had desired to see more devastation and gore.45 45 Eric G. Wilson, Everyone Loves a Good Trainwreck: Why we Can't Look Away 155 (2012).
Wilson contrasts his wife’s deeply emotional response to the tour with that of the disappointed tourist:

But ultimately, I can’t figure out why one person’s transformation is another’s disappointment. What I can say is this: the fact that multitudes are now touring morbid New Orleans and other grim destinations suggests that humans are drawn to witness the worst, and that one powerful source of this attraction, hidden in some people and overt in others, is the hunger for truth (we all die), beauty (we had all better appreciate living things while they last), and goodness (we all suffer, so let’s comfort one another).46 46 Eric G. Wilson, Everyone Loves a Good Trainwreck: Why we Can't Look Away 165 (2012).

Here, Wilson hints at the goal of every trial lawyer working to win a jury: We have to get jurors to empathize with our clients in the hope that they will comfort our clients with their verdict and, in so doing, help our clients to live good lives while they can. My hope is that trial lawyers make appeals with the sordid wonders of their case because justice and empathy are their goals. With that in mind, a juror’s captivated attention represents a step toward the worthy goal of a just verdict.

VII. The Magnificent Cosmos

I will never forget the first time I saw the aurora borealis. Taking advantage of cheap wintertime flights, my wife and I flew to Iceland with the hope of seeing green, magical curtains materialize from the dark ether of the midnight sky. On our first cloudless night, we could see the slow encroach of green light on the north horizon. We watched it creep closer. It was dim but lovely. I worked the shutter of my camera, preparing to get the best images I could. And then it happened: a large green spike formed in the distance; tall and completely different in character from anything we had seen up to that moment. It seemed to reproduce itself over and over in a steady march toward our location. In a matter of moments, a bright towering curtain of light danced overhead, and a second materialized next to it. My wife burst into tears. One need not travel to Iceland to experience cosmic wonder. On a clear night, we look into the sky knowing the window of our atmosphere provides a living-room view of hundreds of thousands of suns. We gape at the thought that some of the stars we see overhead are not stars at all but are swirling galaxies comprised of billions of suns. Even Presidents are not immune:

President Theodore Roosevelt had a routine habit, almost a ritual. Every now and then, along with the naturalist William Beebe, he would step outside at dark, look into the night sky, find the faint spot of light at the lower left-hand corner of Pegasus, and one of them would recite: “That is the Spiral Galaxy of Andromeda. It is as large as our Milky Way. It is one of a hundred million galaxies. It is seven hundred and fifty thousand lights years away. It consists of one hundred billion suns, each larger than our own sun.” There would be a pause and then Roosevelt would grin and say, “Now I think we feel small enough! Let’s go to bed.”47 47 Ravi Zacharias, Recapture the Wonder 16 (2005) (quoting Henry Sloan Coffin, Communion Through Preaching 16-17 (1952).

A. All things great and small

You have undoubtedly been in small courtrooms before. Even with a good case to make, perhaps you and your voice still felt small within them. However, the laws you invoke and the principles that undergird a court of justice float above the heads of the judge and jury as lofty and directional as the constellations. The grand notion of justice is one aspect of wonder that is always in the mind of a trial lawyer. Lawyers do not have to be told to make pleas to the jury to do what is fair, lawful, and just. Thus, I purpose this section as a clarion call for trial lawyers to reach even higher than a small plea. Have you seen a small plea for justice? “Members of the jury, it is for these reasons that we ask you, that we implore you, to do what justice demands, and return a verdict for our client. Thank you.” With the guidance of some good examples, we can strive to do better to reach toward cosmos-sized wonder and invoke something magnificent.

B. The murder of innocents in the fog of war

In March of 1968, hundreds of men, women, and children in a tiny Vietnamese village called My Lai were viciously gunned down—or summarily executed—by a small Army brigade led by Lieutenant William Calley, Jr. The number of dead civilians remains uncertain and conflicting reports about how many civilians were killed exist to this day. Regardless of the precise number of dead civilians, a massacre on this scale was bound to leak out from the ranks of soldiers. Some of the troops shared details of Calley’s gruesome actions that day, though word of the slaughter largely stayed inside Army ranks for a full year. A year after the massacre, photos taken during the raid on My Lai began to trickle into newspapers in the States. Surprisingly, public sentiment in the States was mixed, with many expressing outrage and many considering the killings a necessary feature of war against an often unknowable enemy. Shortly after the news hit newspapers in the U.S., Calley was charged in a military court with the premeditated murder of 102 Vietnamese citizens.48 48 Michael S. Lief, H. Mitchell Caldwell, & Benjamin Bycel, Ladies and Gentlemen of the Jury 346-48, 350, 352 (1998).
The weight of prosecuting Calley fell upon the shoulders of twenty-nine-year-old J.A.G. officer, Aubrey M. Daniel III. The defense in the case suggested Calley was following orders from above and was being prosecuted as a scapegoat to deflect attention from the Army and the Nixon administration.49 49 Michael S. Lief, H. Mitchell Caldwell, & Benjamin Bycel, Ladies and Gentlemen of the Jury 350, 352 (1998). The facts and evidence produced by the prosecution were so gruesome that I will refrain from even summarizing them here. Such heinous acts of inhumanity demanded a strong call to the highest articulable principles of justice. The young prosecutor was up to the task, issuing a resounding plea—vast enough to embrace the international scope of the case. Shortly before concluding his rebuttal, Daniel said:

The laws of this country are only as effective as they are enforced. Without enforcement, they have no meaning, for justice, like discipline, requires that the innocent be recognized and the guilty condemned. Discipline is the backbone of the military. The government and the law also recognize that when the law is disobeyed, it must be exposed and it must be condemned without remorse, without hesitation. It must be quick and it must be sure. The accused was a commissioned officer of the Armed Forces of this United States when he slaughtered his innocent victims in My Lai. He has attempted to absolve himself of responsibility by saying that he had his duty there, that he acted in the name of this country and the law of this nation, and I submit to you and the government submits to you that he did not and upon that question there can be no doubt. To make that assertion is to prostitute all of the humanitarian principles for which this nation stands. It is to prostitute the true mission of the United States soldier. It has been said that the soldier, be he friendly or foe, is charged with protection of the weak and unarmed. It is the very essence and reason for his being. When he violates this sacred trust, he not only profanes his entire cult but threatens the very fabric of international society.50 50 Michael S. Lief, H. Mitchell Caldwell, & Benjamin Bycel, Ladies and Gentlemen of the Jury 399 (1998).

What might we as trial lawyers learn from Daniel’s profound comments about duty, honor, and a country’s noblest moral principles? Notice how Daniel pits the defendant’s claims against the country’s highest morals. Magnificence—here, the moral status of our country’s humanitarian principles—is always transcendent. It is beyond a person’s reasons and volitional acts. To highlight how far Calley’s choices were from the transcendent ideals of the country prosecuting him, Daniel suggests that trying to drag these ideals down to the level of his acts is tantamount to selling those ideals off as prostitutes. Finally, he positions Calley’s acts as not merely violative of his own country’s ideals, but threatening to the transcendent goals of international stability. For Daniel to merely call Calley’s actions unjust would have missed the awe-inspiring wonder of Calley’s own nation of origin, and the entire world, aligning to hold him in contempt.
Here, the reader might wonder how they can reach for the magnificent in their case when their own cases do not involve the import of the international drama of war. I offer Gerry Spence’s admonition about casting a vision in trial. He says:

Every case is more than a case. Most judges and jurors are at least subliminally aware of their need to make things better .... It is we who provide the vision of a better tomorrow. It is we who empower the jury and the judge .... The talent of a true leader is to create the visions that empower us. Their dreams, their visions of a better time to come become ours. Without such visions the history of the human race would be locked in stagnation. So we must provide a vision for the jury.51 51 Gerry Spence, Win Your Case 247 (2005).

Finally, the reader might ask how thinking about the magnificence of the justice within our cause might relate to narrative and good storytelling. The reader might find Daniel’s rebuttal ennobling or even transporting, but it is still only an argument and not a story. One of my trial mentors once suggested to me that my client’s story does not end with the event that necessitated a trial, nor does it end with his bones, muscles, and bruises healing with time. The story ends when the jury writes the final chapter with their verdict and justice is done. Thinking cosmically and trying to find the magnificent wonder of the justice in your case, so that you may share that wonder with the jury, is one strong way to encourage the jury to finish your client’s story well.

VIII. Conclusion

If a trial lawyer wishes to gain their jury’s attention and try to hold it, it behooves the lawyer to conceive of wonder as a part of, and a byproduct of, good storytelling. Wonder should be defined broadly for the sake of good, transportive storytelling. In campfires, car accidents, and the cosmos we find three guideposts pointing the trial lawyer toward the wonder of that which is mesmerizing, morbid, and magnificent. The trial lawyer should aim for these three broadly-conceived levels of wonder with the goal of better, immersive storytelling for transportation and persuasion. The most important trial you have is the one for which you are currently preparing. You should prepare for it believing the story within it possesses the capacity to capture the jury’s attention with something more than the mere intersection of fact and law. If we open our minds to that which grips and engrosses us all, we can see that wonders great and small abound in these stories we are privileged to tell in our courts of law.

Footnotes

1Grant M. Rost is an Associate Instructor of Lawyering Skills at Liberty University School of Law. Mr. Rost would like to thank his research assistant, Micah Long, for his hard work and excellent research. Mr. Rost is extremely grateful to Kathy Shaibani for her proofing and critique. He also wishes to thank his colleagues who offered their guidance and encouragement, with particular gratitude to Steve Rice whose refining eye helped Mr. Rost to see more clearly the signposts his draft needed. Finally, Mr. Rost would like to thank the Articles & Book Reviews Editor of our law review, Hannah Phillips, who came in late in the process and did yeoman’s labor. Mr. Rost would like to say that working with students like Micah and Hannah are part of the blessings of being a law professor.
2Tom Stafford & Matt Webb, Mind Hacks, 113 (2005).
3Tom Stafford & Matt Webb, Mind Hacks, 113 (2005).
4Nicholas Carr, The Shallows: What the Internet is Doing to our Brains 125, 141 (2011).
6Nicholas Carr, The Shallows: What the Internet is Doing to our Brains 125, 141 (2011).
7See generally Rachel Carson, The Sense of Wonder (1998); Richard Dawkins, An Appetite For Wonder: The Making Of A Scientist (2013); Richard Dawkins, unweaving the rainbow: science, deluion, and the appetite for wonder (2000); Ravi Zacharias, Recapture The Wonder (2005).
8R.W. Hepburn, The Inaugural Address: Wonder, 54 Proceedings of the Aristotelian Society 1, 3 (1980).
9R.W. Hepburn, The Inaugural Address: Wonder, 54 Proceedings of the Aristotelian Society 1, 3 (1980). See also Immanuel Kant, Critique of Aesthetic Judgment 125 (1911).
10Rachel Carson, The Sense of Wonder 56 (1998).
11Rachel Carson, The Sense of Wonder 56 (1998).
12Rachel Carson, The Sense of Wonder (1998).
14Jo Piazza, Audiences Experience 'Avatar' Blues, CNN (Jan. 11, 2010).
15See generally Markus Appel & Tobias Richter, Transportation and Need for Affect in Narrative Persuasion: A Mediated Moderation Model, 13 Media Psychol. 101 (2010); Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701 (2000); Philip J. Mazzocco, Melanie C. Green, Jo A. Sasota, Norman W. Jones, This Story is Not for Everyone: Transportability and Narrative Persuasion, Soc. Psychol. and Personality Sci. (2010).
16Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 701 (2000).
17Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 701, 705 (2000).
18Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 706, 713, 718-19 (2000).
19Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 702 (2000); See e.g. Markus Appel & Tobias Richter, Transportation and Need for Affect in Narrative Persuasion: A Mediated Moderation Model, 13 Media Psychol. 101, 104 (2010).
20Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 707 (2000).
21Markus Appel & Tobias Richter, Transportation and Need for Affect in Narrative Persuasion: A Mediated Moderation Model, 13 Media Psychol. 101, 112, 119 (2010).
22Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 711 (2000).
23See generally Markus Appel & Tobias Richter, Transportation and Need for Affect in Narrative Persuasion: A Mediated Moderation Model, 13 Media Psychol. 101 (2010); Melanie C. Green & Timothy C. Brock, The Role of Transportation in the Persuasiveness of Public Narratives, 79 J. of Personality and Soc. Psychol. 701, 707 (2000).
25Meghan Rosen, Wanted Crime-solving bacteria and body odor, Science News 26 (Sept. 5, 2015).
26James W. Mcelhaney, McElhaney's Trial Notebook 683 (2006).
27See generally Eric G. Wilson, Everyone Loves a Good Trainwreck: Why we Can't Look Away (2012).
29See, e.g. Michael S. Lief, H. Mitchell Caldwell, & Benjamin Bycel, Ladies and Gentlemen of the Jury 153-56 (1998).
30Philip N. Meyer, Storytelling for Lawyers 164-69 (2014).
31James W. Mcelhaney, McElhaney's Trial Notebook 46 (2006).
32Michael S. Lief, H. Mitchell Caldwell, & Benjamin Bycel, Ladies and Gentlemen of the Jury 127-57 (1998).
33Michael S. Lief, H. Mitchell Caldwell, & Benjamin Bycel, Ladies and Gentlemen of the Jury 135-36 (1998).
34See generally Eric G. Wilson, Everyone Loves a Good Trainwreck: Why we Can't Look Away (2012).
35Eric G. Wilson, Everyone Loves a Good Trainwreck: Why we Can't Look Away (2012) (citing Kevin Pinkerton & Shuhua Zhou, Ph. D., Effects of Morbid Curiosity on Perception, Attention, and Reaction to Bad News, 7 The Univ. of Ala. McNair J. 129 (2007)).
36Richard Stengel, A Troubled and Troubling Life, Time (Apr. 8, 1985).
38Richard Stengel, A Troubled and Troubling Life, Time (Apr. 8, 1985).
41Waples’s transporting narrative was not enough to get a conviction on any charge except one: possessing an unlicensed firearm. “Though he used ingenious strategies, Mr. Waples was pitted against what proved to be the insurmountable hurdle of public sentiment.” Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years 178 (2005).
42See, e.g., Eric G. Wilson, Everyone Loves a Good Trainwreck: Why we Can't Look Away 154-56 (2012).
43Tate and her unborn child were murdered by followers of Charles Manson. See Lily Rothman, Read TIME’s Report of the Grisly Sharon Tate Murder, Time (Aug. 9, 2015); Simpson and Goldman were allegedly murdered by professional football star O.J. Simpson who was famously acquitted of both murders. See Full Coverage: The O.J. Simpson Case, LA Times (Mar. 4, 2016).
47Ravi Zacharias, Recapture the Wonder 16 (2005) (quoting Henry Sloan Coffin, Communion Through Preaching 16-17 (1952).
48Michael S. Lief, H. Mitchell Caldwell, & Benjamin Bycel, Ladies and Gentlemen of the Jury 346-48, 350, 352 (1998).
49Michael S. Lief, H. Mitchell Caldwell, & Benjamin Bycel, Ladies and Gentlemen of the Jury 350, 352 (1998).
50Michael S. Lief, H. Mitchell Caldwell, & Benjamin Bycel, Ladies and Gentlemen of the Jury 399 (1998).
51Gerry Spence, Win Your Case 247 (2005).

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Marc Consalo1 1 Marc Consalo is a lecturer at the University of Central Florida in its Legal Studies Department. In addition to his teaching responsibilities, he is also in charge of the trial team program and runs the American Mock Trial Southeastern Regional Tournament. He graduated from Rollins College in 1996 Suma Cum Laude with a degree in Psychology and Communications. He later earned his J.D. with Honors from the University of Florida College of Law in 1999. Currently, he is a student at Stetson University College of Law where he is scheduled to earned his L.L.M. in Trial Advocacy in December 2016. Prior to entering into academia, he worked as a criminal trial attorney for approximately fifteen years as both an Assistant State Attorney for the Ninth Judicial Circuit and a private defense attorney. Mr. Consalo currently defends indigent clients accused of felonies when the Public Defender’s Office is conflicted off the case.

4 Stetson J. Advoc. & L. 102 (2017)

I. Introduction

In the early morning hours of June 12, 2016, the unthinkable happened in the small city of Orlando, Florida. The location that many believed was the happiest place on earth turned into the scene of America’s largest mass shooting in history. A gunman, Omar Mateen, opened fire in Orlando’s Pulse Nightclub frequented by members of the gay and lesbian community. By the time the Orlando Police Department had resolved the situation, fifty civilians were dead, including the shooter, and fifty-three others were injured.
With the shooter deceased, no manhunt followed. While there were many questions as to why this occurred, many accusations linked the heinous actions of a deranged lunatic to radical Islamic groups, however there would be no trial. There would be no need to question and find an impartial jury to determine guilt or innocence. No motions would follow moving for a change of venue or perhaps even requesting recusal of a judge. From a judicial standpoint, there would be no repercussions felt in the courtrooms of Orange County, Florida where business as usual occurred Monday morning following the shooting.
Yet while there were no obvious ripples from the actions of this ’lone wolf’ terrorist, did defendants in Orlando who were tried in the days and weeks following the shooting receive fair trials? Accused individuals who faced criminal charges involving robbery with a firearm, attempted murder, and burglary to a dwelling, were judged either guilty or not guilty by jurors who had been rocked by the news of the massacre. This article will explore the question of whether large scale acts of terrorism such as mass shootings should be grounds for cause strikes and preemptory challenges during jury voir dire. First, it will explore the case law on the use of challenges involving potential jurors who had been victims of crime being struck from juries. It will look at the rationale and reasoning for permitting otherwise qualified individuals to sit and hear cases. Next, this article will explore the commonalities which lead to juror bias, such as similarities in the type of crime and the nature of the victim. Finally, this article will present avenues for the judiciary to prepare for a community crisis event and ensure that the tragedy is not compounded by infecting the local jury pool with bias.

II. Issues with Jury Selection

A. Types of bias

The Sixth Amendment to the United States Constitution guarntees criminal defendants a “speedy and public trial, by an impartial jury.”2 2 U.S. Const. amend. VI. Courts have long struggled with what is meant by an “impartial jury.” While the phrase “impartial jury” appears simple to define, it is a phrase that the courts have struggled with for centuries. In 1908, The Supreme Court of the United States wrestled with the phrase in the case of Crawford v. United States. 3 3 Crawford v. United States, 212 U.S. 183 (1909).
In Crawford, a defendant was found guilty for committing fraud against the United States government. The defendant appealed the guilty verdict all the way up to the United States Supreme Court. The defendant agrued that salaried employees of the United States government were prohbited from serving as jurors by law. The Court found that the juror was not a “salaried” employee as defined in the code, nonetheless the employer-employee relationship created an implied bias where the United States government was the victim of the fraud in the instant case. In reaching this decision, the court began to look at the concept of implied bias in addition to actual bias for grounds to remove a potential juror.4 4 Crawford v. United States, 212 U.S. 183, 184-85, 193-94 (1909).
The court noted that the juror’s employment was something of value to him. Yet while there was no evidence that if the juror had found the defendant not guilty, his income would have suffered, “[i]t is enough that it might possibly be the case; and the juror ought not to be permitted to occupy a position of that nature to the possible injury of a defendant on trial.” Therefore, the defendant did not have to prove actual bias for the juror to be removed. It was enough to show the implication of bias based on the relationship. As such, the Court found the trial court errored by refusing to remove the juror.5 5 Crawford v. United States, 212 U.S. 183, 196 (1909).
Approximately thirty years later, the Supreme Court provided some additional guidance for the phrase “impartial jury.” Similar to Crawford, a juror had been struck due to his employment with the Federal Government. This time the Court attacked the code prescribing federal employees automatically could not serve on juries in certain cases. The Court found no law could relieve an attorney nor a judge of their job of finding bias. While admittedly there are two types of bias, actual and implied, either may be grounds for disqualification. However, the court pointed out that the Sixth Amendment’s right to an impartial jury did not create absolutes.6 6 United States v. Wood, 299 U.S. 123 (1936).
The Amendment prescribes no specific tests. The bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as matter of law. There were not grounds for a contention that Congress had undertaken to preclude the ascertainment of actual bias. All persons otherwise qualified for jury service are subject to examination as to actual bias.7 7 United States v. Wood, 299 U.S. 123 (1936).
While Crawford and Wood seem to hold for different propositions, in fact, they speak to the same truth about an impartial jury. Assumptions of bias whether in favor or against the defendant, do not belong in jury selection. Rather it falls to the individual attorneys to use these presumptions as a starting block to ferret out true bias in their potential juries.

All the resources of appropriate judicial inquiry remain available in this instance as in others to ascertain whether a prospective juror, although not exempted from service, has any bias in fact which would prevent his serving as an impartial juror.8 8 United States v. Wood, 299 U.S. 123 (1936).

But the issue of actual bias versus implied bias remained. And with the expansion of the criminal justice system, the issue expanded into the realm of bias as it applied to potential jurors being victims of crimes themselves. While the courts fought hard to determine the significance of one versus the other, little guidance was provided until approximately thirty years later in the case of Brown v. United States, where a defendant had been found guilty at trial of the crime of second degree murder. At trial, the defense attorney questioned jurors about potential bias based on having “anyone in their immediate family” being the victim of a crime. None of the members of the jury responded but it was later discovered that one juror had a brother who had been murdered. The defendant moved for a new trial based on this information which was denied by the trial court.9 9 Brown v. United States, 356 F. 2d 230 (10th Cir. 1966).
In affirming the decision of the lower court, the Tenth Circuit Court of Appeals again recognized a distinction between actual bias and implied bias. It found that the defendant did not accuse the juror of actual bias in his decision making. Rather the concern was regarding potential implied bias. The court asked whether the case compeled “an imputation of inherent bias to the juror as a matter of law.” For the court, the determination centered not on the juror’s responses but on the attorney’s questioning. The court found that no definition for immediate family was ever provided by the defense. With this lack of clarification, no implied bias could be imparted to the juror as it was an honest mistake.10 10 Brown v. United States, 356 F. 2d 230 (10th Cir. 1966).

B. Bias when juror or family member is a victim of a crime

With the agreement that removal of a juror could be based on actual bias versus implied bias, the application of this revelation needed to be applied to those situations where the juror hearing a case was also the victim of the same or similar crime that a defendant was now charged with.11 11 See Johnson v. Champion, 9 F. 3d 117 (10th Cir. 1993). Actual bias, in these situations, was the easier of the two scenarios. Here the juror would admit he or she could not be fair based upon thier experience and the individual would be struck for cause.
However, implied bias posed a more difficult question. The issue of whether a juror may be struck for implied bias is a question of law.12 12 See Burton v. Johnson, 948 F. 2d 1150, 1158 (10th Cir. 1991). Further, any doubts that a juror can be impartial must be made against the juror. This applies equally to actual and implied bias.13 13 See United States v. Nell, 526 F. 2d 1223, 1230 (5th Cir. 1976).

We have no psychic calibers with which to measure the purity of the prospective juror; rather, our mundane experience must guide us to the impartial jury promised by the Sixth Amendment. Doubts about the existence of actual bias should be resolved against permitting the juror to serve, unless the prospective panelist’s protestation of a purge of preconception is positive, not pallid. 14 14 United States v. Nell, 526 F. 2d 1223, 1230 (5th Cir. 1976).

The case of Burton v. Johnson provides guidance on the issue of implied bias in the situation where a juror has been a victim of the same or similar crime to that with which the defendant is charged. In that case, the defendant, Shirley Burton, admitted to killing her husband to protect herself from his continued abuse. During the trial, her attorney used special voir dire procedures in an attempt to obtain an impartial jury.15 15 Burton v. Johnson, 948 F. 2d 1150, 1151-53 (10th Cir. 1991).
First, he requested the selection of jurors be based on an individual examination. Second, he provided the court with expert testimony indicating that because of the sensitive nature of familial abuse, it would be difficult for some potential jurors to speak about inherent bias based upon their own upbringing. The trial judge denied the request to have each individual member of the jury individually questioned but did split the panel up into two large groups to address the expert’s concerns. The trial court further indicated that jurors could answer questions privately, but “he preferred answers in open court because inquiries in chambers were difficult.”16 16 Burton v. Johnson, 948 F. 2d 1150, 1151-52 (10th Cir. 1991).
During the first group of potential jurors, the defense attorney asked about potential bias in hearing the case due to individual experiences with domestic abuse and child abuse. This prompted one brave juror to speak to the parties in chambers revealing that she could not be impartial since she had witnessed her father beat her mother. The juror was removed for cause, and the attorneys proceeded to question the second group of potential jurors.17 17 Burton v. Johnson, 948 F. 2d 1150, 1152 (10th Cir. 1991).
During the second round of questioning, the defense attorney again questioned the panel on potential bias along the same grounds as before. This time no jurors responded to inquiries about child abuse or domestic violence. A jury was empaneled, and after hearing testimony, found the defendant guilty of first degree murder. The defense filed a motion for new trial on grounds of inadequate voir dire. Attached to the motion was an affidavit filed by the defense attorney stating several jurors failed to disclose experiences with abuse. The trial court denied the motion.18 18 Burton v. Johnson, 948 F. 2d 1150, 1152-54 (10th Cir. 1991).
The defense then filed a second motion for a new trial. The motion specifically discussed the experiences of one juror, Mrs. G, who said her husband had a violent temper and physically abused his family. This juror asked to remain anonymous because she feared her husband would punish her if he discovered her statement. The trial court conducted a hearing at which Mrs. G testified when asked about experiences with domestic or child abuse, she did not “connect” her experiences with the question because she attempted to not think about her husband’s conduct.19 19 Burton v. Johnson, 948 F. 2d 1150, 1154 (10th Cir. 1991).
Despite this evidence, the trial judge still denied the motion. On appeal to the New Mexico Supreme Court, the judges affirmed the decision of the lower court indicating that the defense had the opportunity to question witnesses about the topic and no bias affecting the verdict had been demonstrated by the defendant. The defense then filed a writ of habeas corpus, reviewed by a United States Magistrate for the District of New Mexico. The magistrate concluded Mrs. G was impliedly biased.20 20 Burton v. Johnson, 948 F. 2d 1150, 1155 (10th Cir. 1991).
On appeal, the United States Court of Appeals for the Tenth Circuit used the two-part test articulated by the United States Supreme Court in McDonough Power Equipment v. Greenwood to determine if the dishonesty of a juror was grounds for a new trial.21 21 McDonough Power Equip. v. Greenwood, 464 U.S. 548, 556 (1984). Under the test, it must first be determined that a juror lied about material queston during voir dire; and secondly, that an honest response would have resulted in a valid challenge for cause.22 22 McDonough Power Equip. v. Greenwood, 464 U.S. 548, 556 (1984); Burton v. Johnson, 948 F. 2d 1150, 1156 (10th Cir. 1991).
In applying this standard to the Burton case, the Tenth Circuit noted that a finding of implied bias is a question of law for the court. Further, any doubt regarding the existence of bias must be resolved against the juror. There was no argument that Mrs. G lied about her own experiences regarding domestic abuse–evident in Mrs. G’s own testimony. Yet the trial court concluded that there was no evidence that the juror’s experience led to a bias against the defendant. The Tenth Circuit disagreed finding proof of implied bieas by the simple fact the juror chose to lie. As such, the appellate court ordered a new trial.23 23 Burton v. Johnson, 948 F. 2d 1150, 1155, 1158-59 (10th Cir. 1991).
Despite this finding, courts have routinely held back in the application of a per se rule of bias in a juror. This position was reaffirmed in the case of United States v. Jones. There a defendant appealed his conviction for bank robbery. During voir dire, one juror revealed that his daughter-in-law had been the victim of a bank robbery. When questioned further about the issue, the juror indicated that he had not really discussed the matter with his daughter-in-law, and it would not prevent him from being a fair juror in the instant case. The defendant moved to have the potential juror removed for cause, which the judge denied. The defendant was then forced to use a preemptory challenge to ensure the individual did not sit on the panel.24 24 United States v. Jones, 608 F. 2d 1004, 1006, 1008 (4th Cir. 1979).
On appeal, the defendant argued for a per se finding of bias in jurors who themselves, or their families, were victims of the crime being charged, or a similar crime. The circuit court rejected this argument and recognized the broad discretion that trial courts have in conducting voir dire.25 25 United States v. Jones, 608 F. 2d 1004, 1007 (4th Cir. 1979). More importantly, the court cited language from the case of Irvin v. Dowd:

To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard.26 26 United States v. Jones, 608 F. 2d 1004, 1007 (4th Cir. 1979) (citing Irvin v. Dowd, 366 U.S. 717, 723 (1961)).

Put another way, it is impossible to assume that someone is biased based solely on their life experiences. Rather, it is necessary to question and explore those experiences in depth in order to truly ascertain if a person can sit in fair judgment of another. If the juror has the ability to set aside his or her bias and render a decision based solely on the evidence produced in trial, then he can sit as a juror. 27 27 United States v. Jones, 608 F. 2d 1004, 1007 (4th Cir. 1979).

C. What constitutes a victim?

The mass shooting in the heart of Orange County, in downtown Orlando, had a deep effect on that large community. In the days, weeks, and months following the shooting, the community organized mass fundrasing efforts for the victims and victims’ families, along with marchs, vigils, blood-drives, and other suport and recovery efforts.28 28 Photos Show Global Solidarity After Orlando Shooting, National Geographic (June 13, 2016); Alli Knothe, Two Funds for Pulse Victims Merge, Donation Pool Reaches $17 million, Tampa Bay Times (June 30, 2016); Kate Santich, In Wake of Shooting, Hundreds of Fundraising Campaigns Launched, Orlando Sentinel (June 25, 2016). The death toll was fifty, including the shooter, and more than that amount were injured. It is easy to imagine extensive threads of human interaction connecting the deceased and injured to thousands of others in the community: immediate and extended family members, friends, friends-of-friends, colleagues, neighbors, health care and emergency personal involved in the crisis, and a multitude of others. Vigils in the weeks after the shooting engaged tens of thousands of mourners who felt sympathy, compassion and outrage at a very personal level. The very motto of the recovery movement was “One Orlando,” summarizing that the entire community was a victim of the shooting, and the entire community would recover together. 29 29 See About Us, One Orlando Fund.
It is easy to conceive that the pool of potential jurors for cases in the Ninth Judicial Circuit, which includes Orange and Osceola Counties, could be affected in the aftermath by bias in criminal cases, as a result of the shooting; particularly those involving firearms. Sadly, this is a dilemma which has become commonplace across the United States as one community after another falls prey to mass killings. 30 30 For a discussion of recent mass shootings, See J. Korevec, McDonald Does Dallas: How Obscenity Laws on Hard-Core Pornography Can End the Nation's Gun Debate, 88 Univ. So. Cal. L. Rev. 165 (2014).
The legal and practical challenge then is how to ensure fair and impartial jurors in such a community in the weeks, months, and potentially even years after a mass shooting. As a starting point, both judges and defense attorneys must have a thorough understanding of the term “victim” as defined in the law. Most state statutes and federal codes define the term “victim” on a crime-by-crime analysis. In Florida, where the shootings occurred, in the case of a murder charge, the “victim” is defined as a “human being.”31 31 Fla. Stat. § 782.04(1)(a) (2016). In the United States Code, the same definition is provided in a trial for murder: “Murder is the unlawful killing of a human being with malice aforethought.” 32 32 18 U.S.C § 1111 (2016) (emphasis added).
However, if one looks at the definition of terrorism, (another crime which could certainly be associated with the Orlando shootings) the definition includes two different categories of “victim.”33 33 Fla. Stat. § 775.30 (2016). Those categories include any “human life” or a “civilian population.”34 34 Fla. Stat. § 775.30 (2016). If we look to the Federal Code’s definition of victim in a terrorist act, we see again a similar definition to that of Florida, defining victim as either a “human life” or a “civilian population.”35 35 18 U.S.C. § 2331 (2016).
Yet defining an entire population to be a victim is a far more broad definition of the term “victim” than under traditional jurisprudence. However, there is some precedent for this characterization. For instance, in the case of Bowoto v. Chevron Corporation, Nigerian protesters tried to sue Chevron for employing the Nigerian government to oust them during a sit-in.36 36 Bowoto v. Chevron Corp., 481 F. Supp. 2d 1010 (N.D. Cal. 2007).
While the facts of the case were highly disputed between the respective parties, both agreed that sometime in May 1998, the plaintiffs occupied a barge owned by Chevron to protest their presence in the region. Unable to remove them on their own, Chevron requested the Nigerian government intervene. Ultimately, Special Forces answered the call and three days later removed the protestors by force. Unfortunately, in doing so military techniques were employed resulting in the death of an individual. It also was alleged that the remaining protestors were taken into government custody and tortured. Plaintiffs argued a vicarious liability claim under Crimes Against Humanity and the Alien Tort Statute, since the defendants had paid the Nigerian Government.37 37 Bowoto v. Chevron Corp., 481 F. Supp. 2d 1010 (N.D. Cal. 2007). The defendants filed a motion for summary judgment which was subsequently granted by the court.
In granting the motion, the United States District Court for the Northern District of California took pains to review the requirement of a crime against humanity. In doing so, the court listed the two general elements consistent with every humanitarian crime, a “widespread and systematic attack” and an attack targeting “civilian population.” Targeting a “civilian population” need not include the entire population. Rather to satisfy this requirement a showing that a certain group or certain individuals were purposely targeted is sufficient.38 38 Bowoto v. Chevron Corp., 481 F. Supp. 2d 1010 (N.D. Cal. 2007). Therefore, the concept of a population being the victim of a crime, does have precedent.
Even the state home to the Pulse nightclub shooting has a legitimate basis to argue for this conclusion. Since July 1, 2011, the State of Florida has maintained a list of “scrutinized companies” that the local governments and state agencies are forbidden to do business with because of their treatment of entire populations.39 39 Protecting Florida's Investment Act, State Board of Administration of Florida (Aug. 2, 2016). These companies must have ties either to the Country of Sudan or Iran Petroleum Energy Sector.40 40 Fla. Stat. § 215.473 (2016). Florida Statutes Section 215.473(1)(m) defines “[m]arginalized populations of Sudan” to include

[T]he portion of the population in the Darfur region that has been genocidally victimized; the portion of the population of South Sudan victimized by Sudan’s north-south civil war.41 41 Fla. Stat. § 215.473 (2016).

Therefore, implicitly in this statute is the understanding that an entire population can be the victim of a crime.
Debatably, it could pose an arduous task for a trial attorney to argue that a mass shooting was a crime against humanity as recognized by the courts. Establishing that an isolated incident would arise to the level of both a widespread and systematic attack is troublesome. However, if we look at the cumulative effect of these events on American psyche, this prong potentially could be met. Who among us, after Aurora, Colorado, does not go into a movie theater and immediately check for the exists? Who among us, after the Boston Marathon bombing, does not look for a safe outlet in case of emergency at a sporting event? Even elementary schools have now taken greater precautions to keep children safe after Newtown, Connecticut. If we do not take these events as isolated incidents, but rather as a concentrated attack on our safety and way of life, is it truly a far stretch of reasoning to believe that the concerns that encroach in a movie theater or in a sporting event, do not also make their way into a courtroom?
Arguably, in a situation such as the Pulse shootings, where the entire civilian population of Orange County, Florida, may be considered a victim, it is impossible to find an unbiased juror as the entire community is affected. Even if the extent of the civilian population could be limited to the City of Orlando, or even downtown Orlando, the threads of community would render the entire pool of potential jurors in Orange County, Florida, biased, as it is difficult to imagine any citizen of the county who did not know someone who lived or worked within the affected civilian population.42 42 Fla. Stat. § 215.473 (2016).
In the aftermath of a mass shooting, or similar large-scale attack resulting in extensive human harm, it is reasonable to view the entire community as a victim of the attack. In such case, the task to find unbiased jurors from the affected community in the weeks, months, and even years afterward is a nearly impossible task.43 43 Judge Carlos A. Samour, Jr., Effectuating Colorado's Capital Sentencing Scheme in the Aurora Theater Shooting Trial, 93 Denver L. Rev. 577, 578-579 (2016). Yet, it is up to the judicial system to ensure unbiased juries are provided to criminal defendants.44 44 U.S. Const. amend. VI.

D. What constitutes a similar crime?

While the question of whether a potential juror was a victim or close family or friend to a victim of a similar crime is obvious when dealing with a trial for murder after a mass killing, what about potential juror bias in cases of disparate or lesser crimes? Even civil cases, such as tort cases brought against gun manufactuturers could be subject to jury bias in a community recovering from a mass shooting. It is possible that such community members would seek to “send a message” to the maker of the gun or guns which hurt the community.
Many non-murder crimes are committed with firearms, including assault, battery, burglary, kidnapping and rape. While such crimes may not be identical to a mass shooting, there are certainly parallels which could create actual or implied juror bias in a community recently subject to a mass shooting. These crimes are often violent in nature, and they often carry a risk of death to the victim.45 45 See Fla. Stat. § 782.04 (2016). These crimes often create a long-lasting sense of fear or apprehension in the victim, even sometimes resulting in post-traumatic stress syndrome.46 46 D. Kilpatrick, B. Saunders, A. Amick-McMullan, C. Best, L. Veronen & H. Resnick, Victim and Crim Factors Associated with the Development of Crime-Related Post-Traumatic Stress Disorder, Behavior Therapy Vol. 29 Issue 2, 199-214 (Spring 1989). Considering such similarities, it is highly possible that a mass shooting in the community could infect potential jurors in a wide variety of criminal cases.
However, courts have drawn distinctions regarding the similarity of crimes when addressing potential juror bias. For example, in Lugo v. State, the Florida Supreme Court examined the issue of juror bias based upon a juror who failed to disclose that he had been the victim of a violent crime. In Lugo, the defendant was found guilty of a series of horrific crimes against the murdered victim, including kidnapping, torture, extortion, which occurred over a period of a month, as well as the unusually violent murder attempts and eventual murder. A juror failed to disclose that he had been a victim of a violent battery in which he had been knocked to the ground and punched at his workplace. The court drew a distinction between the juror’s one-time victimization through a battery, and the month-long systematic kidnapping, torture, extortion, and violent murder by the defendant. The court stated, “the [juror’s] workplace incident was not sufficiently material or relevant to service on Lugo’s jury,” the court denied the defendant’s request for a new trial.47 47 Lugo v. State, 2 So. 3d 1, 14 (Fla. 2008).
The Lugo case failed to create a bright-line test for similar crimes and its effect on juror bias. Rather, the court addressed the issue of similar crimes effect on juror bias from a common-sense, or subjective, approach. In Lugo, the crimes at issue were significantly more prolonged, violent, and resultant in far more dire consequences than the battery suffered by the juror. In viewing these disparities between the crimes, the court determined that implied basis should not be found.48 48 Lugo v. State, 2 So. 3d 1 (Fla. 2008).
In the aftermath of a mass shooting or an act of terrorism in a community, it is important to make best attempts to define what constitutes a similar crime in the context of potential juror bias. The definition will likely depend on the nature of act which harmed the community. In Orange County, Florida, the site of the largest mass shooting in America, any violent crime involving a firearm might well meet this definition, as might murders of multiple victims from the local community regardless if a firearm was used. As there were allegations that the shooting was motivated by an anti-gay ideology, hate-crimes of any nature against the lesbian, gay, bisexual, transgender, and questioning (“LGBTQ”) community might rightfully be place on the list of criminal offenses for which heightened juror scrutiny should be employed.
Alternatively, there seems to be little need to place drug offenses, non-armed robberies and assaults, bribery, extortion and the multitude of other non-violent crimes on a list for heightened juror scrutiny. It is unlikely that the juror’s view of these types of crimes would be biased after the mass shooting.
It should be left to the officers of the court, judges and attorneys alike, to make the determination after these events occur as to whether a community crisis event, such as a mass shooting or bombing, creates widespread implied bias in the potential jury pool. However, the judiciary must also develop a plan to address these terrible events, before they occur, to prevent compounding the tragedy by allowing obviously biased jurors to issue wrongful convictions.

III. Tools to Avoid Jury Bias in the Aftermath of a Mass Shooting or Similar Terrorist Event

A. Blanket recusal of the local court and transfer of venue

Perhaps the simplest method to avoid jury bias in a community affected by a crisis like a mass shooting is to issue an automatic blanket recusal of the court for designated similar crimes for an appropriate period of time. Such blanket recusal could be effectuated by an administrative order of the chief judge. In doing so, the court will save each judge in each case from the need to engage in case-by-case judicial inquiry and extensive voir dire, thereby saving judicial resources in a community which is now under the added strain of recovering from an attack. Further, it allows for consistent administration of justice within the courthouse, such that all defendants charged with the enumerated crimes are treated equally - rather than some judges granting recusals and changes of venue while other judges refuse to move the case. Lastly, the blanket recusal and transfer order may well prevent a multitude of appeals that are based upon juror bias from flooding the local appellate court.
Certainly, if such a blanket order were to remain in place for several months or years, many logistical issues would need to be addressed to ensure due process to the accused and judicial expediency. Most likely, arrangements would need to be made with nearby counties or circuits to accept the high number of transferred cases and to retain sufficient judges in the recipient jurisdiction, either by creation of new judicial seats or by employment of retired judges, to address the additional caseload.49 49 Gretchen Morgenson & Geraldine Fabrikant, Florida's High-Speed Answer to a Foreclosure Mess, New York Times (Sept. 4, 2010). Very likely, the state legislature would need to take on a role in creating and funding any such judicial positions.
Due to the complexities of such a blanket recusal and transfer in the aftermath of a community crisis, it is important for the judicial, executive, and legislative branches to develop a model order, as well as emergency procedures, which can be quickly and simply (or as simply as feasible) implemented within the affected jurisdiction.

B. Case-by-case analysis for recusal and transfer of venue

Alternatively, change of venue requests can be posed by attorneys on a case-by-case basis. However, the practice of additional pleadings in a multitude of cases could slow judicial efficiency throughout the courthouse.50 50 Per its 2013 report, the Ninth Judicial Circuit for Orange and Osceola County, Florida claimed a criminal caseload of 500-800 cases per docket. See 2012 Annual Report and 2013 User Guide published by the Ninth Judicial Circuit. Again, this slowed judicial economy would occur when the jurisdiction is already suffering from a community tragedy and is not in a position to waste resources. Such case-by-case approach may also result in a patchwork of results in which one judge grants the change of venue, and a different judge down the hall denies it. This, in turn, may lead to a greater number of appeals based upon juror bias, and increased potential for new trials, in the years which follow the crisis event.

C. In-depth jury screening and jury training

The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.51 51 Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007).

If wholesale transfers of venue are not practically, politically, legally, and/or financially possible, an alternative course of action would be heightened juror screening, followed by heightened jury training.52 52 These tatics were used in the People of the State of Colorado v. Holmes case wherein the jury was empaneled within Arapahoe County, the location of the mass shootings. Judge Carlos A. Samour, Jr., Effectuating Colorado's Capital Sentencing Scheme in the Aurora Theater Shooting Trial, 93 Denver L. Rev. 577, 580 (2016). As a practical matter, jury experts and psychologists with expertise in handling mass crisis events should be employed to assist the court administration in creating either a mandatory, or recommended, jury questionnaire to assist with voir dire for screening jurors after a community crisis event.53 53 A helpful start to such a list for such questionaire can be found at 84 Am. Jur. Trials 109 VIII. Trial 79 Voir Dire, I. Evans and A. Rostron (2016). Excerpts of judical training and questioning of the jury against bias can be found in Lugo v. State, 2 So. 3d 1, 14-15 (Fla. 2008). This questionnaire would serve as extra protection against undetected jury bias.
It is incumbent upon the court, after the occurence of a community trauma such as a mass shooting, to allow sufficient and liberal strikes in subsequent trials of violent crimes.54 54 When a court fources a defendant to use a peremptory challenge to the cure the court’s denial of cause challenge, it may constitute reversible error if the defendant exhausts all of their remaining peremptory challenges. See Busby v. State, 894 So. 2d 88, 96-97 (Fla. 2004). It is well-settled that any ambiguity or uncertainty about a jurors ability to remain impartial should be resolved in favor of excusing the juror.55 55 See Burton v. Johnson, 948 So. 2d 1150, 1158 (10th Cir. 1991); See also Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007); Cottrell v. State, 930 So. 2d 827, 829 (Fla. 4th DCA 2006) (quoting Huber v. State, 669 So. 2d 1079, 1081 (Fla. 4th DCA 1996)); Smith v. State, 907 So. 2d 582, 585 (Fla. 5th DCA 2005).

When a party seeks to strike a potential juror for cause, the trial court must allow the strike when ’there is basis for any reasonable doubt’ that the juror had ’that state of mind which [would] enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial.’56 56 Singer v. State, 109 So. 2d 7, 23-24 (Fla. 1959).

Even where the defense counsel fails to raise a concern regarding juror bias in the aftermath of a mass murder or terrorism act, it falls to the court to prevent a biased juror or jurors from serving. As noted in Carratelli II,

[J]ury selection error justifying post-conviction relief is so fundamental and glaring that it should have alerted a trial judge to intervene, even in the absence of a proper objection, to prevent an actually biased juror from serving on the jury, thereby irrevocably tainting the trial. 57 57 Carratelli v. State, 915 So. 2d 1256, 1261 (Fla. 4th DCA 2005).

This does not, obviously, excuse a defense attorney from fulfilling his or her duty to thoroughly question jurors, not only with regard to their experience as a victim of a crime, or close relationship to a victim of a crime, but also how that crime affects their ability to remain impartial.58 58 See Roberts v. Tejada, 814 So. 2d 334, 343 (Fla. 2002); See also Lugo v. State, 2 So. 3d 1 (Fla. 2008). This applies also to questions regarding the community crisis and its effect on the juror’s partiality in the specific case. The defense attorney needs to also recognize that, if the crisis event appeared to be motivated by a hate crime against a certain group, that the element of that expression of hate (both the perpetrator(s) and the victim(s)) and its effect on juror bias also be thoroughly explored).
The court should acknowledge that locating a sufficient number of unbiased jurors from the community juror pool in the aftermath of a community crisis event will be exceedingly difficult.59 59 See Judge Carlos A. Samour, Jr., Effectuating Colorado's Capital Sentencing Scheme in the Aurora Theater Shooting Trial, 93 Denver L. Rev. 577, 580 (2016). With this reality in mind, the judiciary should, either via administrative order for all similar cases or via judicial order on a case-by-case basis, allow more strikes for cause than what would be allowed under normal circumstances. The decision to permit additional preemptory strikes is left to the sole discretion of the court. It is well established law that a defendant is not automatically entitled to additional bites at the apple in this arena. Numerous cases stand for this proposition even when on the face of the case, the refusal to grant additional challenges appears unfair or “not very generous.” What matters is that ultimately a fair and impartial jury is impaneled to hear the case.60 60 See United States v. Hueftle, 687 F. 2d 1305, 1309-10 (10th Cir. 1982). Therefore it is incumbent upon the defense to tailor his or her argument for additional challenges in terms of the ultimate jurors left to hear the case and not a mere numbers game.
Once the jurors are selected, the court needs to ensure that the community jurors will receive training specifically related to their obligation to remain unbiased. Jurors cannot allow the recent crisis event to affect their adjudication of guilt or innocence in the courthouse.

IV. Preparing the Judiciary for Future Crisis Events

It is a disturbing but unavoidable fact that community attacks, such as mass shootings and bombings, have become a regular event throughout America. Just as law enforcement agencies across the country develop response plans for such events, so too must the judiciary. For the judiciary, the goal must be to ensure justice continues in an efficient and unbiased manner for those facing trial, even in the wake of a devastating community attack. A key element in such plans should be to address and eliminate the implied juror bias which will inevitably arise in the local jury pool after a community tragedy.

V. Conclusion

On June 12, 2016, shortly after the Pulse Nightclub massacre, Orlando Mayor Buddy Dyer gave an interview with CNN about the shooting. During that interview, Mayor Dyer stated, “So it’s not just 50 individuals that have been impacted, it is our entire community.”61 61 Interview with Orlando Mayor Buddy Dyer; Orlando Nightclub Shooting Deadliest Mass Shooting in U.S. History, CNN (June 12, 2016). Florida Governor Rick Scott stated during a news brief, “... this is an attack on our people. An attack on Orlando. An attack on Florida. An attack on America. An attack on all of us."62 62 Quotes from leaders on the mass shooting in Orlando, News 4 Jax (June, 13, 2016). Vice President Joe Biden wrote, “Last night, at least fifty innocent people gathering to celebrate love and life were brutally killed in an act of pure hate and unspeakable terror. Scores of others were injured in the attack. They were our brothers and our sisters; our friends, neighbors, and loved ones.”63 63 Quotes from leaders on the mass shooting in Orlando, News 4 Jax (June, 13, 2016). The common thread in all of thse statements is the reality that acts of terrorism and mass shootings create victims out of all of us. We all feel the sting of violence from these events. Courts must recognize the connection that these horrific crimes create between potential jurors and violence in general. If judges are unwilling to recognize this new reality, it then falls to the defense attorney to initiate the conversation about the topic during the voir dire process. And even if jurors are unwilling to admit actual bias from these events, prolific defense attorneys must explore the effect of these crimes on jury pools to discover implicit bias.
If the goal of terrorists is to instill fear in the hearts of the populace, the legal system must take steps now to ensure that the judicial process is not corrupted by the radical propaganda of these deranged madmen. Almost half of all Americans believe terrorism is an attack on our way of life.64 64 Cliff Saunders, Poll: American Way of Life under Threat, KTRH. There is no truer way to thwart this repulsive ambition than to ensure the rights and guarantees that citizens enjoy during the judicial process remain in order to weather these attacks. Only then, do we truly win against the War on Terror.

Footnotes

1Marc Consalo is a lecturer at the University of Central Florida in its Legal Studies Department. In addition to his teaching responsibilities, he is also in charge of the trial team program and runs the American Mock Trial Southeastern Regional Tournament. He graduated from Rollins College in 1996 Suma Cum Laude with a degree in Psychology and Communications. He later earned his J.D. with Honors from the University of Florida College of Law in 1999. Currently, he is a student at Stetson University College of Law where he is scheduled to earned his L.L.M. in Trial Advocacy in December 2016. Prior to entering into academia, he worked as a criminal trial attorney for approximately fifteen years as both an Assistant State Attorney for the Ninth Judicial Circuit and a private defense attorney. Mr. Consalo currently defends indigent clients accused of felonies when the Public Defender’s Office is conflicted off the case.
2U.S. Const. amend. VI.
3Crawford v. United States, 212 U.S. 183 (1909).
4Crawford v. United States, 212 U.S. 183, 184-85, 193-94 (1909).
5Crawford v. United States, 212 U.S. 183, 196 (1909).
6United States v. Wood, 299 U.S. 123 (1936).
7United States v. Wood, 299 U.S. 123 (1936).
8United States v. Wood, 299 U.S. 123 (1936).
9Brown v. United States, 356 F. 2d 230 (10th Cir. 1966).
10Brown v. United States, 356 F. 2d 230 (10th Cir. 1966).
11See Johnson v. Champion, 9 F. 3d 117 (10th Cir. 1993).
12See Burton v. Johnson, 948 F. 2d 1150, 1158 (10th Cir. 1991).
13See United States v. Nell, 526 F. 2d 1223, 1230 (5th Cir. 1976).
14United States v. Nell, 526 F. 2d 1223, 1230 (5th Cir. 1976).
15Burton v. Johnson, 948 F. 2d 1150, 1151-53 (10th Cir. 1991).
16Burton v. Johnson, 948 F. 2d 1150, 1151-52 (10th Cir. 1991).
17Burton v. Johnson, 948 F. 2d 1150, 1152 (10th Cir. 1991).
18Burton v. Johnson, 948 F. 2d 1150, 1152-54 (10th Cir. 1991).
19Burton v. Johnson, 948 F. 2d 1150, 1154 (10th Cir. 1991).
20Burton v. Johnson, 948 F. 2d 1150, 1155 (10th Cir. 1991).
21McDonough Power Equip. v. Greenwood, 464 U.S. 548, 556 (1984).
22McDonough Power Equip. v. Greenwood, 464 U.S. 548, 556 (1984); Burton v. Johnson, 948 F. 2d 1150, 1156 (10th Cir. 1991).
23Burton v. Johnson, 948 F. 2d 1150, 1155, 1158-59 (10th Cir. 1991).
24United States v. Jones, 608 F. 2d 1004, 1006, 1008 (4th Cir. 1979).
25United States v. Jones, 608 F. 2d 1004, 1007 (4th Cir. 1979).
26United States v. Jones, 608 F. 2d 1004, 1007 (4th Cir. 1979) (citing Irvin v. Dowd, 366 U.S. 717, 723 (1961)).
27United States v. Jones, 608 F. 2d 1004, 1007 (4th Cir. 1979).
28Photos Show Global Solidarity After Orlando Shooting, National Geographic (June 13, 2016); Alli Knothe, Two Funds for Pulse Victims Merge, Donation Pool Reaches $17 million, Tampa Bay Times (June 30, 2016); Kate Santich, In Wake of Shooting, Hundreds of Fundraising Campaigns Launched, Orlando Sentinel (June 25, 2016).
29See About Us, One Orlando Fund.
30For a discussion of recent mass shootings, See J. Korevec, McDonald Does Dallas: How Obscenity Laws on Hard-Core Pornography Can End the Nation's Gun Debate, 88 Univ. So. Cal. L. Rev. 165 (2014).
3218 U.S.C § 1111 (2016) (emphasis added).
3518 U.S.C. § 2331 (2016).
36Bowoto v. Chevron Corp., 481 F. Supp. 2d 1010 (N.D. Cal. 2007).
37Bowoto v. Chevron Corp., 481 F. Supp. 2d 1010 (N.D. Cal. 2007).
38Bowoto v. Chevron Corp., 481 F. Supp. 2d 1010 (N.D. Cal. 2007).
39Protecting Florida's Investment Act, State Board of Administration of Florida (Aug. 2, 2016).
43Judge Carlos A. Samour, Jr., Effectuating Colorado's Capital Sentencing Scheme in the Aurora Theater Shooting Trial, 93 Denver L. Rev. 577, 578-579 (2016).
44U.S. Const. amend. VI.
45See Fla. Stat. § 782.04 (2016).
46D. Kilpatrick, B. Saunders, A. Amick-McMullan, C. Best, L. Veronen & H. Resnick, Victim and Crim Factors Associated with the Development of Crime-Related Post-Traumatic Stress Disorder, Behavior Therapy Vol. 29 Issue 2, 199-214 (Spring 1989).
47Lugo v. State, 2 So. 3d 1, 14 (Fla. 2008).
48Lugo v. State, 2 So. 3d 1 (Fla. 2008).
49Gretchen Morgenson & Geraldine Fabrikant, Florida's High-Speed Answer to a Foreclosure Mess, New York Times (Sept. 4, 2010).
50Per its 2013 report, the Ninth Judicial Circuit for Orange and Osceola County, Florida claimed a criminal caseload of 500-800 cases per docket. See 2012 Annual Report and 2013 User Guide published by the Ninth Judicial Circuit.
51Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007).
52These tatics were used in the People of the State of Colorado v. Holmes case wherein the jury was empaneled within Arapahoe County, the location of the mass shootings. Judge Carlos A. Samour, Jr., Effectuating Colorado's Capital Sentencing Scheme in the Aurora Theater Shooting Trial, 93 Denver L. Rev. 577, 580 (2016).
53A helpful start to such a list for such questionaire can be found at 84 Am. Jur. Trials 109 VIII. Trial 79 Voir Dire, I. Evans and A. Rostron (2016). Excerpts of judical training and questioning of the jury against bias can be found in Lugo v. State, 2 So. 3d 1, 14-15 (Fla. 2008).
54When a court fources a defendant to use a peremptory challenge to the cure the court’s denial of cause challenge, it may constitute reversible error if the defendant exhausts all of their remaining peremptory challenges. See Busby v. State, 894 So. 2d 88, 96-97 (Fla. 2004).
55See Burton v. Johnson, 948 So. 2d 1150, 1158 (10th Cir. 1991); See also Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007); Cottrell v. State, 930 So. 2d 827, 829 (Fla. 4th DCA 2006) (quoting Huber v. State, 669 So. 2d 1079, 1081 (Fla. 4th DCA 1996)); Smith v. State, 907 So. 2d 582, 585 (Fla. 5th DCA 2005).
56Singer v. State, 109 So. 2d 7, 23-24 (Fla. 1959).
57Carratelli v. State, 915 So. 2d 1256, 1261 (Fla. 4th DCA 2005).
58See Roberts v. Tejada, 814 So. 2d 334, 343 (Fla. 2002); See also Lugo v. State, 2 So. 3d 1 (Fla. 2008).
59See Judge Carlos A. Samour, Jr., Effectuating Colorado's Capital Sentencing Scheme in the Aurora Theater Shooting Trial, 93 Denver L. Rev. 577, 580 (2016).
60See United States v. Hueftle, 687 F. 2d 1305, 1309-10 (10th Cir. 1982).
62Quotes from leaders on the mass shooting in Orlando, News 4 Jax (June, 13, 2016).
63Quotes from leaders on the mass shooting in Orlando, News 4 Jax (June, 13, 2016).
64Cliff Saunders, Poll: American Way of Life under Threat, KTRH.

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Michael W. Pinsof1 1 Michael W. Pinsof is an Adjunct Professor of Paralegal Studies in the College of Professional Studies at Roosevelt University in Chicago. Mr. Pinsof is also a solo practitioner is Northfield, Illinois.

4 Stetson J. Advoc. & L. 158 (2017)
Dorothy: Oh, will you help me? Can you help me?
Glinda, the Good Witch: You don’t need to be helped any longer. You’ve always had the power to go back to Kansas.
Dorothy: I have?
Scarecrow: Then why didn’t you tell her before?
Glinda, the Good Witch: Because she wouldn’t have believed me. She had to learn it for herself.
(Frank Baum, “The Wizard of Oz”)

I. Introduction

In subrogation and insurance defense litigation, insurers’ use of “cookie cutter” boilerplate responses or objections to discovery requests have become ubiquitous. Frequently, individual insureds — or their corporate representatives posssessing first-hand knowledge of a claim’s operative facts — may be difficult to locate and/or unwilling to cooperate. By the time a suit is commenced in a subrogation action, the insured has already recouped its loss, and therefore has very little “skin in the game.” The insured may reside or do business in a distant location, and stands only to recover what may be a relatively insignificant deductible amount. Former employees of the insured with actual knowledge of the occurrence may be either difficult to locate or unresponsive. Bound only by a rarely enforced cooperation clause in the standard insurance contract, by settlement agreement, or by the common law duty to cooperate, the insurer may have little, if any, leverage to secure the insured’s participation in litigation. These facts, combined with the strict “drop-dead” deadline for serving responses to Requests for Admission (“RFAs”), often cause an insurance company’s counsel to resort to evasive responses and/or objections. Most frequently, an insurer will attempt to justify its objections and/or inability to respond by claiming that it lacks first-hand knowledge or information. An understanding of the law governing this recurring scenario can empower opposing counsel with the tools to exploit deficient responses to RFAs.
This article will define the parameters of the duty imposed upon an insurer by state and federal court rules to make a “reasonable inquiry” to ascertain “readily obtainable” information when responding to RFAs.2 2 Fed. R. Civ. P. 36(a)(4). The focal point, on which the case law is scant, is the extent to which this duty extends to making inquiry of and obtaining information from its insured, who in certain circumstances is considered a non-party.3 3 Prudential Prop. & Cas. Co., v. Dow Chevrolet-Olds, Inc., 10 S.W.3d 97 (Tex. App. 1999). A West Virginia District Court seems to stand alone in supporting the position that an insurer has a duty to consult with non-party occurrence witnesses, including the insured, when responding to RFAs.4 4 Erie Ins. Prop. Cas. Co. v. Johnson, 272 F.R.D. 177 (S.D. W. Va. 2010). In stark contrast, recent Kentucky5 5 Petro v. Jones, No. 11-151-GFVT (E.D. Ky. 2014). and California District Court6 6 Diamond St. Ins. Co. v. Deardorff, No. 1:10-cv-00004 AWI JLT (E.D. Cal. 2011). decisions, arguably subject to criticism, reach a different result.
Cases that have addressed the issue of whether the duty to inquire requires a party to obtain information from non-parties, turn on factors such as the degree of “control” exercised over the third party, and the “identity of interest” between the parties.7 7 Robert Wise & Katherine Fayne, Requests for Admission Under the Texas Discovery Rules, 45 St. Mary’s L.J. 655, 683 n. 93, 685 n. 97 (2014). Decisions construing an insurer’s duty to secure the attendance of a knowledgeable agent of its insured for a deposition, and to make inquiry of the insured to provide compliant responses to interrogatories, can elucidate the scope of the duty. Case law suggests that a subrogor could, by definition, be considered to be within the control of and closely conjoined with the interests of the insurer, thereby triggering the insurer’s duty to obtain its cooperation.8 8 U.S. Fire Ins. Co. v. Rockland Fire Equip. Co. Inc., 642 N.Y.S .2d 314 (N.Y. App. Div. 1996); QBE Ins. Corp. v. Jorda Enters, Inc., 277 F.R.D. 676 (S.D. Fla. 2012).
When encountering a “lack of knowledge” claim of inability to admit or deny a RFA, the proponent must be prepared to move the court for an order compelling the respondent to articulate, in detail, the efforts that have been undertaken to obtain the requested information.9 9 Fed. R. Civ. P. 36(a)(4). Insufficiently supported responses to RFAs invoking the “lack of information” response can set a trap10 10 Fed. R. Civ. P. 36(a)(4). for unwary or careless counsel for insurers. Familiarity with the limits of the “lack of knowledge”11 11 Fed. R. Civ. P. 36(a)(4). exception will enable opposing counsel to proactively respond to an insurer’s recycled, boilerplate responses or objections to RFAs that may fall short of satisfying the legal requirements. If the insurer is unable to comply, such a strategy may lay a solid legal foundation for requesting sanctions or summary judgment.

II. The Contractual and Common Law Duty of an Insured to Cooperate

In the event of a potentially covered loss, claim, or lawsuit, the insured is required to cooperate with its insurer in the investigation and resolution of the claim. This “duty to cooperate” is specifically set forth in the vast majority of policies as one of several duties and conditions imposed on the insured. A typical cooperation clause provides:

The insured shall cooperate with the Company and, upon the Company’s request or through attorneys selected by the Company to respresent the insured must ... (b) assist in making settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject matter of this insurance ... (i) allow the Company to take signed and recorded statements and answer all questions we may ask when and as often as we may require; (j) submit to examinations under oath as often as the Company requires, outside the presence of any other insured or person to be examined under oath ... The Company has no duty to provide coverage under this policy unless there has been full compliance with these responsibilities.12 12 Am. Access Cas. Co. v. Alassouli, 31 N.E.2d 803 (Ill. App. Ct. 2015).

Even if it is not expressly set forth in the policy, it has been held to be an implied-in-law condition to coverage.13 13 First Bank of Turley v. Fid. & Deposit Ins. Co., 928 P.2d 298, 305 (Okla. 1996).
In a subrogation posture, the primary purpose of the cooperation clause is to assist the insurer in pursuing a claim for reimbursement against a responsible third-party. In this context, the insurance company must rely on the insured to provide it with sufficient details to pursue the claim and respond to discovery requests, details that often only the policyholder can provide. In this posture, if the insured takes an “I’ve got better things to do” approach, the insurer is essentially left with no remedy against its insured, other than perhaps seeking reimbursement of attorneys’ fees and costs. Because the policyholder stands to recover its deductible, and the economic intersts of the insurer and its policyholder are at least to that extent mutual, there would seem to be more of a significant incentive to cooperate. The insured’s incentive to cooperate may be stronger in a claim defense posture, as in certain limited circumstances the insurer may deny coverage if it can demonstrate that the insured’s failure cased “actual prejudice.”14 14 Rick Virnig, The Insured's Duty to Cooperate, 6 J. Tex. Ins. L. 2, 11 (Fall 2005).

III. The Strategic Role of RFAs When Litigating Against An Insurer

Generally, Federal Rule of Civil Procedure 36(a) requires one of three answers to a Request for Admission: (1) an admission; (2) a denial; or (3) a statement detailing why the answering party is unable to admit or deny the matter.15 15 Fed. R. Civ. P. 36(a). RFAs can be a far more powerful tool than other forms of discovery. First, and perhaps foremost, RFAs have a definitive deadline for responses, after which immediate and potentially severe consequences — admission of the subject facts and or documents — can result.
The Advisory Committee’s 1970 Notes to Rule 36 explain the dual purposes of RFAs.16 16 Fed. R. Civ. P. 36 advisory committee’s note (1970). Admissions are primarily sought to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be. Essentially, the purpose of Rule 36(a) is to expedite a trial by establishing certain material facts as true, thus narrowing the range of issues for trial. The Committee cautions that parties may not view requests for admission as a mere procedural exercise requiring minimally acceptable conduct, and should focus on the goal of the Rules — full and efficient discovery — as opposed to evasion and word play.17 17 Fed. R. Civ. P. 36 advisory committee’s note (1970). Arguably, courts must enforce a stricter standard of timely compliance with the Rule than with other forms of written discovery.
Perhaps the insurer is unable to admit or deny the requests because it lacks the requisite first-hand knowledge or information; or the insurer may object on the basis that it has no obligation to obtain information from a non-party over whom it has no control. Additionally, it is not uncommon for the insurer to simply fail to recite the simple phrase that it has in fact exercised reasonable diligence to procure readily obtainable information. The RFA proponent should be locked and loaded to react to one or a combination of possible technically inadequate responses from insurers. To be fully prepared for these scenarios, the propounding party’s counsel should lay the preliminary groundwork by initiating discovery designed to ascertain the details and dynamics of the insurer-insured relationship, including the communications and documentation exchanged between the parties, and the terms and conditions of the policy.

IV. The “Lack of Information or Knowledge” Justification for Refusing to Admit or Deny

A. “Degree of Control” over and “Identity of Interest” with third parties

In Asea, Inc. v. Southern Pac. Transp. Co.,18 18 Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242 (9th Cir. 1981). the Ninth Circuit held that a response which fails to admit or deny a proper request for admission does not comply with the requirements of Rule 36(a) if the answering party has not, in fact, made “reasonable inquiry,” or if information “readily obtainable” is sufficient to enable him to admit or deny the matter. "Thus, Rule 36 requires the responding party to make a reasonable inquiry, a reasonable effort, to secure information that is readily obtainable from persons and documents within the responding party’s relative control and to state fully those efforts."19 19 Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242 (9th Cir. 1981).
The crux of the issue is whether the degree of control necessary to trigger the duty of reasonable inquiry extends to third parties/non-parties. The court in Sea Island Acquisition LLC v. Barnett (“In re: Sea Island Co.”) articulates the policies that should be weighed:

The requirement for a shared identity of interest or control over the third party ensures that the respondent admits or denies with the requisite belief that the information provided is correct. Without a sufficient identity of interest with or level of control over any of the third parties ... forcing (the respondent) to admit or deny the requests would require third party discovery with each of those third parties to compel and test the accuracy of the response. This task would extend beyond a “reasonable inquiry,” and the requested information would go beyond what (the respondent) could “readily obtain.”20 20 In re: Sea Island Co., No. 10-21034 (Bankr. S.D. Ga. Nov. 25, 2015).

Courts have applied a consistent standard when defining the parameters of this duty. "At a minimum, a party must make inquiry of a third party when there is some identity of interest manifested, such as by both being parties to the litigation, a present or prior relationship of mutual concerns, or their active cooperation in the litigation, and when there is no manifest or potential conflict between the party and the third party.”21 21 K’NAPP v. Adams, No. 1:06-cv-01701-LJO-GSA-PC (E.D. Cal. Oct. 6, 2014). Courts have held that this duty to inquire of third parties extends to and includes officers, directors, employees, agents, and attorneys.22 22 Noble v. Gonzalez, No. 1:07-cv-01111-LJO-GSA-PC (E.D. Cal. Aug. 26, 2013). As discussed hereinbelow, courts are divided on whether the duty applies to insureds and agents of insureds.
To effectively challenge deficient or evasive responses, it is essential to construct a legal foundation to support the argument that one or more of these requirements exists. When this can be accomplished, the duty of reasonable inquiry is triggered, as is the duty to recite “in detail” the actual efforts that have been made. To do so, we must draw from cases involving other forms of discovery. Having stockpiled the legal support, a focused discovery plan can be then implemented to mount a challenge to the factual basis for the deficient responses to RFAs.

B. Cases involving other forms of discovery may provide legal support by analogy

A pair of 20th century rulings interpreting New York state law vaguely comment on the degree of control that a subrogee exercises over its insured. In Furniture Fantasy v. Cerrone, the plaintiff-subrogee appealed from an order striking its subrogation complaint, that which was entered as a sanction for failing to produce the principal of its insured for a deposition in accordance with a prior court order. The subrogee argued that it lacked control over its insured and that the insured’s business could not initially be located. Subsequently, the designated agent of the insured declined to appear. The New York Supreme Court affirmed the dismissal action based upon the absence of evidence presented by the subrogee detailing its efforts to secure the attendance of the witness.23 23 Furniture Fantasy, Inc. v. Cerrone, 546 N.Y.S.2d 133 (N.Y. Sup. Ct. 1989). Seven years later, in a curt two paragraph opinion, the New York Supreme Court examined a similar situation in which the plaintiff-subrogee was ordered to produce an employee of its insured for examination. Affirming the entry of the order, the court held that the subrogation agreement between plaintiff and its subrogor, in which the subrogor agreed to cooperate fully with the plaintiff in its prosecution of subrogation actions, established the plaintiff’s control over its subrogor’s employees for purposes of disclosure.24 24 U.S. Fire Ins. Co. v. Rockland Fire Equip. Co., Inc., 642 N.Y.S.2d 314 (N.Y. Sup. Ct. 1996).
The idea that a cooperation term in an agreement between the subrogor and subrogee is sufficient in and of itself — to create the requisite degree of control of a subrogee over its insured to compel its agents’ presence at a deposition — can form the basis of a compelling (albeit creative) legal argument.
Opinions construing “lack of information” responses to interrogatories provide additional support for the legal argument that an insurer exercises control over its insured. In Essex v. Amerisure, the plaintiff insurer, who was suing as the assignee of its insured, stated in its answers to interrogatories that the insured’s personnel possessed the requested information and that the insurer was therefore unable to respond. The court held that merely because the requested information was not possessed by the insurer, it did not mean that the information was unavailable to it, especially given that it was an assignee of the owner’s interests. The insurer was required to make reasonable efforts to obtain relevant documents or interview the insured’s personnel in responding to the interrogatories. If the insurer refused or failed to make its personnel available, then the plaintiff insurer was required to set forth, in its supplemental responses, the efforts it made to obtain responsive information.25 25 Essex Builders Grp., Inc. v. Amerisure Ins. Co., 429 F. Supp. 2d 1274 (M.D. Fla. 2005).
Cases construing the insurer’s obligations under FRCP 30(b)(6) to designate and produce a knowledgeable witness can also be argued by analogy to support the position that the insurer has the requisite degree of control over its insured. QBE Insurance Corporation v. Jorda Enterprises, Inc. offers an in-depth analysis of the duties imposed upon a plaintiff-subrogee, when the corporate insured/subrogor is unable to locate an appropriate FRCP 30(b)(6) witness with requisite knowledge of the facts that are “relevant and material to the incidents underlying the lawsuit.” In QBE, the court held, “[t]herefore, QBE was obligated to seek out information and documents from available third party sources — including its insured, the condominium association.” The court in QBE finds that the subrogee’s duty to obtain information and documentation from its insured was particularly applicable, where the insured was contractually obligated to cooperate with the insured pursuant to the terms of a settlement agreement.26 26 QBE Ins. Corp. v. Jorda Enters, Inc., 277 F.R.D. 676 (S.D. Fla. 2012).

V. Does the Duty to Use “Reasonable Inquiry” Require an Insurer to Obtain Information from Its Insured?

It would seem that the above-cited authority construing “control” over and “identity of interests” with the insured would effectively settle the issue, and lend virtually irrefutable support for the proposition that the insurer has a duty to make reasonable inquiry of its policyholder when responding to RFAs, as a matter of law. However, the weight of scant case law is to the contrary. In Petro v. Jones, the insurer defending a personal injury action objected to and claimed lack of knowledge and information in response to RFAs served by the plaintiffs, which related to the operative facts of the accident. The plaintiffs moved for sanctions. The court disagreed with the plaintiffs’ contention that FRCP 36 required the insurer to collect information from third parties outside of its immediate control. The court flatly rejected plaintiffs’ argument that the insurer had an obligation to interview the driver of the vehicle (its insured), and denied the motion for sanctions, finding that, “the reasonable inquiry standard does not require that defendants perform discovery on a plaintiff’s behalf.”27 27 Petro v. Jones, No. 11-151-GFVT (E.D. Ky. Mar. 12, 2014).
In the context of a subrogation proceeding, case law is in accord with Petro. In Diamond State Insurance Co. v. Deardorff, the Defendant contended that he was entitled to an award of expenses and attorneys’ fees pursuant to FRCP 37(c)(2) because the plaintiff-subrogees failed to consult with their insured before responding to defendant’s RFA. The defendant contended that, in the context of a subrogation case, where plaintiffs’ rights are wholly derivative of those held by their insureds, it was incumbent on plaintiffs to confer with the policyholders to ensure that their responses to the RFAs were adequately supported. The court found that the fact that plaintiffs did not fully consult with the insured prior to responding to the RFAs did not mean, per se, that plaintiffs lacked good reason for denying the requests, and declined to award attorneys’ fees on that basis alone.28 28 Diamond St. Ins. Co. v. Deardorff, No. 1:10-cv-00004 AWI JLT (E.D. Cal. June 8, 2011).
The holding in Erie Insurance Property & Casualty Co. v. Johnson is contrary to that in Petro and Diamond State. The author submits and represents that it is the better, and well-reasoned view. In Erie, the insurer for the counter-defendant objected to a particular RFA served by the injured counter-plaintiff, which requested that the insurer admit the fact that the vehicle involved in the accident was connected to its insured’s business. The court found the objection to be “inappropriate” and opined: “A reasonable inquiry and effort into the responding to his request — which involves its insured, Mr. Halford Johnson — would have allowed Erie to admit or deny it.” The court proceeded to order the insurer to re-respond to the RFA. 29 29 Erie Ins. Prop. & Casualty Co. v. Johnson, 272 F.R.D. 177 (S.D. W. Va. 2010).
It strains logic to accept the conclusion that an insurer’s interests are not unified with those of its insured, that it lacks control over its insured, and that the parties do not actively cooperate in prosecuting or defending the litigation. This seems particularly applicable in a subrogation posture. As unsuccessfully argued in Diamond State,30 30 Diamond St. Ins. Co. v. Deardorff, No. 1:10-cv-00004 AWI JLT (E.D. Cal. June 8, 2011).the plaintiff-subrogee essentially “steps into the shoes” of its insured, and derives the very essence of its reimbursement claim from its insured. Moreover, the subrogee is subject to all defenses that can be raised against its subrogor. The parties’ financial interests are mutual, inasmuch as the insured must rely upon its insurer to recover its deductible per the terms of the policy, and the insurer is bound to reimburse it if subrogation is successful.
It is submitted that placing the burden on an insurer to contact and obtain first-hand information from its insured to enable it to respond to RFAs is not unreasonable, particularly when balanced against the clearly-articulated policies of full and complete disclosure and simplification of the issues for trial. It does not seem to be significantly more burdensome than requiring an insurer to contact its employees and agents. After all, its contract of insurance, and in any event common law, imposes a reciprocal duty of communication and cooperation upon its insured. These contentions could arguably form the basis for arguing that a court should reject the doctrine adopted by the courts in Petro and Diamond State, in favor of that articulated in Erie Insurance.

VI. Must the Lack of Knowledge Response Be Supported by “Detailed Facts” Describing the Particular Efforts?

It is well-established that when a lack of information response is challenged, the responding party must demonstrate that there was in fact insufficient information to admit or deny the request, or that it failed to make a reasonable inquiry.31 31 Robert Wise & Katherine Fayne, Requests for Admission Under the Texas Discovery Rules,45 St. Mary’s L.J. 655, 682 n. 91 (2014). The degree to which the respondent must demonstrate the diligence of its inquiry is a fluid concept, that the propounding party can potentially use to gain tactical advantage. Federal courts have split on the issue in interpreting Federal Rule 36(a)(4)’s language.32 32 Fed. R. Civ. P. 36(a)(4). Although some have held that the responding party must detail its inquiry, most have held that a simple statement that the party has made a reasonable inquiry and lacks adequate information to admit or to deny the request is sufficient.33 33 Jacobs v. Sullivan, No. 1:2005cv01625 (E.D. Cal. Aug. 27, 2012). The latter construction appears to represent the majority view:

To require the answering party to describe in detail the efforts it has made to inquire would be to turn the request(s) for admission into an open-ended interrogatory. Moreover, an in-detail description of the inquiry does not advance the discovery ball much; such an answer still does not produce an admission or denial. The detail is not much use for discovery. The detail is more useful for after trial to determine whether Federal Rule 37(a)(5) expenses should be awarded for failure to admit, but requiring that information now pushes to an early part of the case a lot of work and squabbles that may never need to be addressed if the case settles or the issue proves to be irrelevant down the road . . . to read a requirement that the answering party describe in detail the reasonable inquiry only promotes satellite litigation with little benefit.34 34 Radian Asset Assurance, Inc. v. Coll. of Christian Brothers, No. 09-0885 JB/DJS (D. N.M. Nov. 11, 2011).

However, the majority view articulated hereinabove leaves the door open for strategic maneuvering, by raising the “benefit outweighs the burden” argument and the absence of “good faith.” In Knisely v. National Better Living Association, Inc.,35 35 Knisely v. Nat’l Better Living Ass’n, Inc., No. 3:14-CV-15 (N.D. W. Va. Feb. 11, 2015). the District Court observes that utilizing these "magic words" does not absolve an answering party from complying with Rule 36(a)(4) in good faith. The court in Knisely notes that Rule 36 admission requests serve the highly desirable purpose of eliminating the need for proof of issues upon trial, and accordingly, there is strong disincentive to finding an undue burden where the requested party can make the necessary inquiries without extraordinary expense or effort.
It is precisely this “seam” in the case law that can be strategically exploited by proactively challenging the sufficiency of the detail of in the insurer’s lack of knowledge response.36 36 Knisely v. Nat’l Better Living Ass’n, Inc., No. 3:14-CV-15 (N.D. W. Va. Feb. 11, 2015). By utilizing information obtained through written discovery, the RFA proponent may be able to formulate an argument that (a) the respondent has in fact failed to make good faith efforts to diligently seek information from its insured; (b) the insured does in fact possess the requisite degree of control over its insured; and (c) that the benefit of ordering the respondent to specify the degree of effort that it expended outweighs any potential slight burden.

VII. A Methodological Discovery Strategy for Exploiting Deficient Responses to RFAS

The foregoing legal framework should be an integral part of a strategy designed not only to obtain potentially damaging admissions, but also to set discovery traps for opposing insurer’s counsel. As previously mentioned, lax, inexperienced, or overburdened counsel for an insurer often rely upon standardized, evasive responses or objections to RFAs. It is striking how many reported cases involve “lack of knowledge” responses to RFAs that fail to contain the simple statement required by applicable Rule, that the respondent has made diligent inquiry and that the requested information is not readily obtainable.37 37 Fed. R. Civ. P. 36(a)(4). The simple reason is that such insufficient responses are rarely, if ever, challenged — perhaps because of a calculated cost-benefit analysis — and/or the perception that a challenge would be unsuccessful. The reader of this piece will be equipped to exploit deficient responses and reshape that paradigm.
The key is to formulate and implement a discovery strategy designed to establish a factual foundation to demonstrate the insurer’s control over, identity of interests with, relationship of mutual concerns with, or active cooperation with the insured. To do so, counsel should prepare and serve on the insurer a Notice to Produce the insurance policy, cooperation agreement, or settlement/litigation agreement, if any, that contractually binds the insured to furnish information to the insurer. The insurer’s entire claim file, including its investigation and documentation of any payouts, should also be requested. Any sworn statements or other communications between the insurer and the insured and insured’s agents should also be requested, as well as any and all documents furnished by the policyholder to the insurer. Securing possession of these documents could help to establish the degree of control over and identity of interest with the insured, which may subsequently be argued in support of a motion requesting more specific responses. Concurrently, interrogatories should be prepared and served, requiring the insurer to identify all non-parties with knowledge or information relating to the operative facts and relevant documents relating to the claim, including the insured and agents of the insured.
Next, a 30(b)(6) Notice of Deposition should be served, requesting the insurer to produce the insured or agent(s) of the insured with first-hand knowledge of the operative facts.38 38 Fed. R. Civ. P. 30(b)(6). Any objections or claim of lack of knowledge or unavailability of witnesses with first-hand knowledge should be immediately challenged with a Motion to Compel. The foundation will have been laid to prepare and serve a RFA focusing on the operative facts and essential documents underlying the dispute, of which only the insured would possess first-hand knowledge. The requests should be framed with an eye toward framing the material factual issues for which admissions could provide a basis for summary judgment.
In a subrogation case, the plaintiff-subrogee, who essentially “steps into the shoes” of its insured, must plead and prove the operative facts of the insured’s underlying cause of action. Quite often, particularly in motor vehicle accident cases, the complaint will consist of bare-bone, boiler-plate allegations minimally sufficient to plead a cause of action for negligence. The allegations may be verified by an agent of the insurer, who will not have any actual first-hand knowledge of the operative facts, other than what can be gleaned from a police or accident report in the claim file. It would not be out of the ordinary for the complaint to be verified by an insurance company representative without even obtaining a sworn statement from the insured. It is quite possible that the defendant’s version of the underlying facts will vary from or contradict the boiler-plate allegations contained in the complaint. A request to the insurer to admit the defendant’s version of the material facts could elicit a response exposing the insurer’s lack of first-hand knowledge or information, or other evasive response.39 39 Fed. R. Civ. P. 36(a).
Evasive responses, claims of lack of knowledge or information, and/or failure to sufficiently allege that the responding party has exercised reasonable diligence to obtain readily obtainable information and documentation, call for aggressive motion practice. However, counsel implementing this strategy must exercise caution and restraint in complying with the applicable rules of procedure, particularly when litigating in federal court. Beasley v. State Farm Mutual offers a cautionary tale for practitioners.40 40 Beasley v. State Farm Mutual Auto. Ins. Co., No. C13-1106RSL (W.D. Wash. Mar. 25, 2014). In Beasley, while acknowledging that the insurer’s responses to plaintiff’s RFAs “appeared to be insufficient,” the court denied the plaintiff’s motion pursuant to FRCP 36(a)(6) to compel State Farm’s responses,41 41 Fed. R. Civ. P. 30(b)(6). based upon the movant’s failure to comply with FRCP 37 by conferring with opposing counsel and alleging that an impasse had occurred, before filing the motion.42 42 Fed. R. Civ. P. 37.
Once attempts to resolve the dispute over the alleged insufficiency of RFAs have proven fruitless, a meticulous motion strategy should be implemented. Many federal courts are disinclined to deem matters admitted when they find the responding party’s answers to RFAs to be deficient. Typically, when the responding party’s answer to requests for admission is deemed to be noncompliant with FRCP Rule 36, federal courts order the responding party to serve a supplemental answer.43 43 Fed. R. Civ. P. 36. Accordingly, the litigator should prepare a motion requesting the court to order the insurer to re-serve compliant responses to the objectionable RFAs.
Where a federal court finds a lack of good faith on the part of the responding party, it may deem the matter admitted.44 44 Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242 (9th Cir. 1981). Typically, courts have ordered matters admitted either when the evidence shows that it should have been admitted,45 45 Uniden Am. Corp. v. Ericsson, Inc., 181 F.R.D. 302, 304–05 (M.D. N.C. 1998). or when the court finds the responding party’s conduct in answering the requests for admission to be reprehensible.46 46 A. Farber and Partners, Inc. v. Garber, 417 F. Supp.2d 1143 (C.D. Cal. 2006). The case law cited hereinabove may lend support to an argument that the responding party failed to exercise reasonable diligent efforts to obtain readily obtainable information. Evasive responses, or those found to be made in bad faith, or purporting to contradict other evidence in the case, can lead to the next phase of the strategy. With the support of the information obtained during the preliminary stage of discovery, the responding party’s failure to sufficiently articulate “in detail” its efforts to obtain information from the insured can and should be challenged. In the case of an insurer, the RFA proponent may be positioned to challenge the argument that the insurer is a non-party, and therefore not within the control of the insured, or that their interests are not unified. In situations where a factual basis exists for any of these contentions, a Motion to Deem Facts as Admitted and Documents as Genuine should be prepared.
A successful motion to Deem Facts as Admitted or Documents as Genuine may set the stage for a motion for summary or at least partial summary judgment on a material issue, and potentially for sanctions. FRCP 37 provides for sanctions, including attorneys’ fees, for pursuing and prevailing on a motion challenging the sufficiency of responses to RFAs.47 47 Fed. R. Civ. P. 37. FRCP 37(c)(2) states in relevant part:

If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney’s fees, incurred in making that proof. The court must so order unless: (A) the request was held objectionable pursuant to FRCP 36(a); (B) the admission sought was of no substantial importance; (C) the party failing to admit had reasonable ground to believe that the party might prevail on the matter; (D) there was other good reason for the failure to admit.48 48 Fed. R. Civ. P. 37(c)(2).

VIII. Conclusion

The strategies suggested herein are based upon developing case law that is far from being universally applied, and rely upon arguments pieced together from analogous lines of cases. That being said, an effective discovery “ground game,” culminating in focused RFAs, may elicit defective or evasive responses form an insurer. In turn, these responses can be exploited to opposing counsel’s advantage. In order to position oneself to exert such exploitation, the practitioner is well-advised to master the above-cited case law and implement the foregoing discovery strategies. By doing so, it may be possible to establish the requisite degree of the insured’s control over and identity of interests with the insured. If one or both of those facts can be successfully established, the duty of “reasonable inquiry,” to be pursued in good faith, is triggered. At that juncture, the insurer must satisfy its burden.

Footnotes

1Michael W. Pinsof is an Adjunct Professor of Paralegal Studies in the College of Professional Studies at Roosevelt University in Chicago. Mr. Pinsof is also a solo practitioner is Northfield, Illinois.
2Fed. R. Civ. P. 36(a)(4).
3Prudential Prop. & Cas. Co., v. Dow Chevrolet-Olds, Inc., 10 S.W.3d 97 (Tex. App. 1999).
4Erie Ins. Prop. Cas. Co. v. Johnson, 272 F.R.D. 177 (S.D. W. Va. 2010).
5Petro v. Jones, No. 11-151-GFVT (E.D. Ky. 2014).
6Diamond St. Ins. Co. v. Deardorff, No. 1:10-cv-00004 AWI JLT (E.D. Cal. 2011).
7Robert Wise & Katherine Fayne, Requests for Admission Under the Texas Discovery Rules, 45 St. Mary’s L.J. 655, 683 n. 93, 685 n. 97 (2014).
8U.S. Fire Ins. Co. v. Rockland Fire Equip. Co. Inc., 642 N.Y.S .2d 314 (N.Y. App. Div. 1996); QBE Ins. Corp. v. Jorda Enters, Inc., 277 F.R.D. 676 (S.D. Fla. 2012).
9Fed. R. Civ. P. 36(a)(4).
10Fed. R. Civ. P. 36(a)(4).
11Fed. R. Civ. P. 36(a)(4).
12Am. Access Cas. Co. v. Alassouli, 31 N.E.2d 803 (Ill. App. Ct. 2015).
13First Bank of Turley v. Fid. & Deposit Ins. Co., 928 P.2d 298, 305 (Okla. 1996).
14Rick Virnig, The Insured's Duty to Cooperate, 6 J. Tex. Ins. L. 2, 11 (Fall 2005).
15Fed. R. Civ. P. 36(a).
16Fed. R. Civ. P. 36 advisory committee’s note (1970).
17Fed. R. Civ. P. 36 advisory committee’s note (1970).
18Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242 (9th Cir. 1981).
19Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242 (9th Cir. 1981).
20In re: Sea Island Co., No. 10-21034 (Bankr. S.D. Ga. Nov. 25, 2015).
21K’NAPP v. Adams, No. 1:06-cv-01701-LJO-GSA-PC (E.D. Cal. Oct. 6, 2014).
22Noble v. Gonzalez, No. 1:07-cv-01111-LJO-GSA-PC (E.D. Cal. Aug. 26, 2013).
23Furniture Fantasy, Inc. v. Cerrone, 546 N.Y.S.2d 133 (N.Y. Sup. Ct. 1989).
24U.S. Fire Ins. Co. v. Rockland Fire Equip. Co., Inc., 642 N.Y.S.2d 314 (N.Y. Sup. Ct. 1996).
25Essex Builders Grp., Inc. v. Amerisure Ins. Co., 429 F. Supp. 2d 1274 (M.D. Fla. 2005).
26QBE Ins. Corp. v. Jorda Enters, Inc., 277 F.R.D. 676 (S.D. Fla. 2012).
27Petro v. Jones, No. 11-151-GFVT (E.D. Ky. Mar. 12, 2014).
28Diamond St. Ins. Co. v. Deardorff, No. 1:10-cv-00004 AWI JLT (E.D. Cal. June 8, 2011).
29Erie Ins. Prop. & Casualty Co. v. Johnson, 272 F.R.D. 177 (S.D. W. Va. 2010).
30Diamond St. Ins. Co. v. Deardorff, No. 1:10-cv-00004 AWI JLT (E.D. Cal. June 8, 2011).
31Robert Wise & Katherine Fayne, Requests for Admission Under the Texas Discovery Rules,45 St. Mary’s L.J. 655, 682 n. 91 (2014).
32Fed. R. Civ. P. 36(a)(4).
33Jacobs v. Sullivan, No. 1:2005cv01625 (E.D. Cal. Aug. 27, 2012).
34Radian Asset Assurance, Inc. v. Coll. of Christian Brothers, No. 09-0885 JB/DJS (D. N.M. Nov. 11, 2011).
35Knisely v. Nat’l Better Living Ass’n, Inc., No. 3:14-CV-15 (N.D. W. Va. Feb. 11, 2015).
36Knisely v. Nat’l Better Living Ass’n, Inc., No. 3:14-CV-15 (N.D. W. Va. Feb. 11, 2015).
37Fed. R. Civ. P. 36(a)(4).
38Fed. R. Civ. P. 30(b)(6).
39Fed. R. Civ. P. 36(a).
40Beasley v. State Farm Mutual Auto. Ins. Co., No. C13-1106RSL (W.D. Wash. Mar. 25, 2014).
41Fed. R. Civ. P. 30(b)(6).
42Fed. R. Civ. P. 37.
43Fed. R. Civ. P. 36.
44Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242 (9th Cir. 1981).
45Uniden Am. Corp. v. Ericsson, Inc., 181 F.R.D. 302, 304–05 (M.D. N.C. 1998).
46A. Farber and Partners, Inc. v. Garber, 417 F. Supp.2d 1143 (C.D. Cal. 2006).
47Fed. R. Civ. P. 37.
48Fed. R. Civ. P. 37(c)(2).

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Theodore E. Karatinos & Shaheen Nouri1 1 Theodore “Ted” E. Karatinos, Esq. has taught litigation-related classes at the Stetson University College of Law since 2002. He practices personal injury law at the Holliday Karatinos Law Firm and may be contacted at tedkaratinos@helpinginjuredpeople.com. Shaheen Nouri is a currently a Juris Doctor Candidate at the Stetson University College of Law and serves as a teaching fellow for pre-trial litigation courses.

4 Stetson J. Advoc. & L. 193 (2017)

I. Introduction

Given sufficient data, the well-reasoned opinions of retail safety experts should be admitted in federal civil trials. In recent years, the field of retail safety has significantly matured.2 2 The authors define “retail safety” as loss prevention, risk management, facility management, and commercial maintenance practices. Given the recent developments in the field, barring the admissibility of safety opinions under Federal Rule of Evidence 702 should only occur in extraordinary circumstances. To avoid the exclusion of their forensic opinions, retail safety experts must present their opinions within the proper court-related context.
Retail safety experts can run the gauntlet of the federal rules of evidence by familiarizing themselves with the requirements. They must frame their qualifications in terms of “knowledge, skill, experience, training, [and] education.”3 3 Fed. R. Evid. 702. They should organize their forensic reports within the procedural framework of Federal Rule of Civil Procedure 26(a)(2), while drafting the content of their reports within the framework of Federal Rule of Evidence 702. Their reports must educate the federal judiciary on the widely-accepted standards used in risk management, facility management, loss prevention, and commercial maintenance. “Evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence.”4 4 Silverpop Sys. v. Leading Mkt. Techs., Inc., 641 F. App'x 849 (11th Cir. 2016) (citing Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir. 1975)). Stated another way, “a business owner breaches the duty of care owed to its customers when it allows a dangerous condition or defect to exist on the premises if that condition or defect was created by the owner, operator or his agent; or, if the condition is created by someone else, when the business owner had actual or constructive notice that the dangerous condition or defect existed prior to the injury.”5 5 Morris v. Wal-Mart Stores, Inc., 330 F.3d 854, 858 (6th Cir. 2003). By incorporating the requirements of the federal rules into their reports, retail safety experts will secure the admissibility of their opinions in federal court.

II. The Matured Field of Retail Safety

Within the past ten years, groups, associations, and governmental entities have developed accepted retail safety standards. These developments reflect a push toward uniformity in securing a safe retail environment for vendors, customers, and employees. For example, the International Sanitary Supply Association [ISSA] published a set of cleaning industry management standards in 2006.6 6 Cleaning Industry Management Standard, ISSA (2006). In that publication, the ISSA outlines the minimum accepted standards for the following, with references to all pertinent OSHA standard subsections:
  • Managerial Training;
  • Site-specific Orientation;
  • Environmental Management Systems; and
  • Regulatory Compliance
These standards provide a comprehensive guide to safe retail cleaning practices. Historically, a retail outlet’s failure to implement systematic cleaning of the premises has led to considerable litigation. Such litigation runs the gamut from slip-and-falls to falling merchandise cases. Going forward, the ISSA standards may form a baseline for accepted cleaning practices across all retail settings, as the ISSA’s cleaning industry management standards reflect a broader trend towards providing uniform measures for safe practices in retail environments.
Beyond standardized cleaning practices, various organizations and retail safety industry leaders have waded into the ocean of retail safety. The American National Standards Institute [ANSI] has issued standards for the safe matting of commercial entrances.7 7 ANSI/NFSI Standard B101.6 for Commercial Entrance Matting in Reducing Slips, Trips, and Falls, American National Standards Institute (2012). The Standard Guide for Commercial Entrance Matting in Reducing Slips, Trips, and Falls, published by the National Floor Safety Institute [NFSI] provides information on all aspects of safety mats, their placements, their maintenance, required patterns, and more. The ANSI standard is designed both to prevent and to reduce the incidents of falls in retail safety establishments. By following the guidelines prescribed therein, a landowner would strive to provide safer walking surfaces at a reasonable cost. Through the implementation and enforcement of internal policies, a higher degree of floor safety may be achieved. Industrial giants, such as Cintas, have provided their own comprehensive guides to preventing falls in areas of high pedestrian traffic.8 8 Floor Mats: A Key Component of Your Slip and Fall Prevention Strategy, Cintas Corporation (2014). Retail safety experts now recognize the utility of an integrated cleaning and matting safety plan. Most importantly, both the National Safety Council and the federal government have blazed a uniform trail towards a safer retail experience by publishing standards. The widely-referenced National Safety Council’s Accident Prevention Manual lays out what is known as the “safety hierarchy” or “hazard control hierarchy” for the prevention of accidents. This hierarchy prescribes a prioritized scheme to address hazards before they occur. First, it states that a retail environment should endeavor to eliminate hazards. This is inclusive of an array of hazards, which include hazardous chemicals, perilous designs, and dangerous product placements when safer alternatives can be achieved. Second, the hierarchy states that a retail environment should venture to guard against the possibility of someone coming into contact with the hazard. The means of guarding against the contact with hazards ranges from proper placement of safety cones around wet floors or sealing off a supermarket aisle when heavy machinery is in use, to the requirement of rubber gloves for employees using chemicals in the retail space. Third, the hierarchy prescribes that retail environments strive to warn all individuals of hazards as a last line of defense. Put another way, it is important for the retail environment to warn of hazards with the use of signs, tape, and safety cone (among other safety warning systems). This hierarchy will help the retail environment to focus on the most effective means of dealing with hazardous conditions and ensure safety.
The federal government has promulgated safety regulations. By and through the Occupational Safety and Health Administration, the matured field of retail safety has been furnished with regulations that encompass a broad range of retail safety matters. OSHA’s regulations encompass measures for the protection of both employees and patrons, and outlines measures that the retail environment must adhere to for the protection of such individuals. These regulations span the breadth of walking-working surface conditions, the repair and safeguarding of hazardous conditions, the use of qualified professionals for repair and correction, and other relevant instances of ensuring safety in a retail environment.
Within the field of retail safety, an extensive amount of regulations and peer-reviewed literature is available for the use of any retail safety expert in forming their opinions. The formation of admissible testimony in this field requires the amalgamation of regulations, policies, and peer-reviewed studies, among other elements mentioned in the attached template. This process should make use of all pertinent resources to form a protective wrapping around the expert’s opinion. When done properly, this patchwork of cleaning, matting, and managerial safety standards now forms a quilt that the qualified retail safety expert may rely upon to cover forensic opinions.

III. Drafting the Rule 26(a)(2) Report

Retail safety experts should consider using the template linked to this article to comply with Federal Rule of Civil Procedure 26(a)(2).9 9 Fed. R. Civ. P. 26(a)(2). In the first section of the report, the opinions should be numbered. Each opinion must be supported with underlying data and analyzed through the filter of one or more industry standards. The second section of the report should disclose a detailed numerical list of the facts and data relied upon by the expert. The third section of the report will contain charts, graphs, and diagrams. The fourth section will showcase the expert’s qualifications. The fifth section will contain a list of cases in which the expert has thus far testified in the past four years. The final section will disclose how much the expert has been paid for the services rendered in the case. Following the template will streamline judicial scrutiny of the expert’s analysis under Federal Rule of Evidence 702.

IV. Peer-Reviewed Retail Safety Expert Research

After the Supreme Court’s seminal 1993 ruling in Daubert v. Merrell Dow Pharmaceuticals,10 10 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 594 (1993). the gatekeeping requirements for admissible expert opinion were codified in Federal Rule of Evidence 702.11 11 Fed. R. Evid. 702. Admissible opinions draw strength from peer-reviewed research. Retail safety experts would be wise to cite copiously to articles within the subspecialty applicable in each case. These articles should be listed in section II of the expert’s forensic report for ease of access and organizational purposes. A representative sample of such peer-reviewed research on retail safety practices is attached for further reading.

V. Current Federal Civil Cases Favoring Admissibility of Retail Safety Expert Opinions

Federal precedent provides a foundation that favors the admissibility of expert opinions in the field of retail safety. Federal courts have admitted the opinion of a retail safety expert where it provides the court with the industry standards of the particular retail environment at bar.12 12 State Farm Fire & Cas. Co. v. Bell, F. Supp. 3d 1085, 1098 (D. Kan. 2014); Bass v. Hardee’s Food Sys., 982 F. Supp. 1041, 1043 (D. Md. 1997).A trial court must be “flexible” in evaluating the admissibility of the expert’s opinions.13 13 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 594 (1993). As one federal court noted, “trial courts routinely allow experts to testify on industry standards, ordinances, and policies.”14 14 Garrity v. Wal-Mart Stores East, L.P., 288 F.R.D. 395, 402 (W.D. Ky. 2012). In 2000, the Advisory Committee for the Federal Rules of Evidence observed “the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system.”15 15 Fed. R. Evid. 702 advisory committee’s note (2000). Put another way, the Committee clarified that the trial courts should not endeavor to take away from the jury or fact-finder the authority and responsibility of viewing the facts and determining a result through the lens of expert testimony when it is helpful. Precedent regarding the requisite use of scientific principles and replicable experiments in the qualification of expert opinion, with regard to retail safety, directs that an expert’s experience alone may be sufficient in establishing their reliability, making the scientific principles no longer requisite factors. In Peterson v. Scotia Prince Cruises, Ltd., a federal court found that peer-review, publication, and potential error rate are not applicable factors when the reliability of expert testimony depends heavily on their knowledge and experience, rather than on the methodology or theory behind their testimony.16 16 Peterson v. Scotia Prince Cruises, Ltd., 323 F. Supp. 2d 128, 129-30 (D. Me. 2004). The opinion of a retail safety expert based on industry standards has been admitted in federal court for such reasons.17 17 Wisdom v. TJX Cos., 410 F. Supp. 2d 336, 341-43 (D. Vt. 2006). Federal courts routinely admit expert testimony regarding industry standards, ordinances, and policies in slip-and-fall cases for the purpose of helping the fact-finder understand the evidence being presented.18 18 Garrity v. Wal-Mart Stores East, L.P., 288 F.R.D. 395, 402 (W.D. Ky. 2012). “Evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence.”19 19 Silverpop Sys. v. Leading Mkt. Techs., Inc., 641 Fed. App'x 849, 853 (11th Cir. 2016) (citing Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180 (5th Cir. 1975)).Generally, expert opinion testimony is admitted when the issue upon which the evidence is offered is one of science and skill, or similarly when the subject matter is outside the common knowledge of jurors.

VI. Conclusion

Civil juries will greatly benefit by filtering lapses in retail safety through the lens of expert testimony. The field of retail safety has matured in recent years to the point of standardizing the practices, policies, and procedures that minimize the risk of accidents. By familiarizing themselves with the requirements of the federal rules of evidence and civil procedure, retail safety experts will pass through the gate of admissibility. Use of the attached template will provide a sound foundation for a thorough forensic report. Through the inspection of the accident site, the analysis of photographic evidence, the consideration of deposition testimony, the gathering of peer-reviewed research specific to the case, the discovery of internal policies, and the application of industry standards, the reliability of the retail safety expert’s opinion will leap from the pages of their report.

Retail Safety Expert Opinion Template
Pursuant to Federal Rule of Evidence 26(a)(2)

I. Opinion(s)

In the case at bar, in examining all materials available to me, I have concluded that: (1) first opinion, individually numbered, (2) second opinion, individually numbered, (3) third opinion, individually numbered (continue as number of opinions dictate).

With regard to opinion (1), [restate opinion]: [discuss underlying data that led to the opinion, including the specific industry standards, guidelines, or regulations that provide context to this particular opinion.

With regard to opinion (2), [restate opinion]: [discuss underlying data that led to the opinion, including the specific industry standards, guidelines, or regulations that provide context to this particular opinion.

With regard to opinion (3), [restate opinion]: [discuss underlying data that led to the opinion, including the specific industry standards, guidelines, or regulations that provide context to this particular opinion.

II. List of Referenced Facts and Data:

  1. [Insert fact and/or data relied upon]
  2. [Insert fact and/or data relied upon]
  3. [Insert fact and/or data relied upon]
  4. [Insert fact and/or data relied upon]
  5. [Insert fact and/or data relied upon]

III. Charts, Graphs, and Diagrams (employed in reaching opinions and/or integral to the opinions themselves)

IV. Expert’s Qualifications for Purposes of Foundation

[This section should be tailored to include that which makes the expert, and his or her opinion, reliable. Generally, if formal education and certifications are relevant to the field of retail safety, safety, or the specific purpose of their testimony, they should be included. A strong reliance on the expert’s years of experience and specific dealings with workplace safety should be exhibited. Any relevant publications, articles, and other published works by the expert should be exhibited].

V. List of Cases Within Which Expert Has Previously Testified

[An organized, numbered list beginning with the most recent case is suggested. Exhibit all cases by their proper styles].

VI. Disclosure of Expert’s Compensation for Services Rendered

[A disclosure of the total amount in which the expert is being compensated for his or her services, followed by a brief breakdown of the expert’s compensation leading up to trial and compensation for testifying at trial].

Representative Sample of Peer-Reviewed Retail Safety Expert Research

I. Articles

B. Johnson, Plan, Train to Reduce Slip and Falls, Facility Safety Management (July 2012).

Dave Mesko, Risky Business: The Cost of Unsafe Floors, FMJ (Jan./Feb. 2013).

G. Gorte and C. Kunzler, Diagnosis of Safety Culture in Safety Management Audits, Safety Science 131 (Feb. 2000).

Jan K. Wachter & Patrick L. Yorio, A System of Safety Management Practices and Worker Engagement for Reducing and Preventing Accidents: An Empirical and Theoretical Investigation, Accident Analysis and Prevention 117 (July 2014).

Kent J. Nielsen, Improving Safety Culture Through the Health and Safety Organization: A Case Study, J. Safety Research 7 (Feb. 2014).

Kevin Duhamel, How to Build an Effective and Comprehensive Fall Protection Plan, Industrial Hygiene News (Nov. 2012).

Kyle W. Morrison, Step by Step: How Can Employers Mitigate the Risk of Slips, Trips and Falls, Safety+Health (Mar. 2013).

Lars Harms-Ringdaul, Relationships Between Accident Investigations, Risk Analysis, and Safety Management, 111 J. Hazardous Materials 13 (April 2004).

Michael J. Burke, et al., Relative Effectiveness of Worker Safety and Health Training Methods, 96 Am. J. Pub. Health 315 (Feb. 2006).

R. Scott Lawson, Safety Teams: Transforming Safety Committees to Improve Results, Professional Safety 26 (Mar. 2015)

R. Vajko, A Complete Fall Prevention Program in 9 Simple Steps, Workplace Safety Newsletter (Aug. 2015).

S. Moore, Determine Slip Risk, OTI–Facility Safety Management (Apr. 2013).

Shafik M. Shovik, Safety Issues, Impact & Its Consequences in Retail Business, Service Branch 2 (Oct. 2012).

Susanna Larsson Tholén et al., Causal Relations Between Psychological Conditions, Safety Climate and Safety Behavior – A Multi-Level Investigation, Safety Science 62 (June 2013).

Thomas Kramer, Top Five Ways to Reduce Fall Hazard Risk, Occupational Health & Safety (July 2013).

Tim Page-Bottorff, Incident Investigation and Reporting, Safety+Health (Feb. 2015).

V. Anderson, Focus On: Risk Management, Chain Store Age (Feb. 2010).

William C. Balek, Managing Slip and Fall Liability: A Legal Perspective, ASTM–in Technology of Floor Maintenance and Current Trends 141 (2004).

II. Books

James Reason & Alan Hobbs, Managing Maintenance Error: A Practical Guide (2003).

III. Federal Regulations

29 C.F.R. § 1910.22 (2014).

IV. Governmental Publications

Preventing Slips, Trips, and Falls in Wholesale and Retail Trade Establishments, National Institute for Occupational Safety and Health–Workplace Solutions (Oct. 2012).

V. Nationwide Industry Standards

ANSI/NFSI Standard B101.6 for Commercial Entrance Matting in Reducing Slips, Trips, and Falls, American National Standards Institute (2012).

VI. Safety Manuals

Zurich Retail Safety Orientation Manual, Zurich Services Corp. (2011).

Footnotes

1Theodore “Ted” E. Karatinos, Esq. has taught litigation-related classes at the Stetson University College of Law since 2002. He practices personal injury law at the Holliday Karatinos Law Firm and may be contacted at tedkaratinos@helpinginjuredpeople.com. Shaheen Nouri is a currently a Juris Doctor Candidate at the Stetson University College of Law and serves as a teaching fellow for pre-trial litigation courses.
2The authors define “retail safety” as loss prevention, risk management, facility management, and commercial maintenance practices.
3Fed. R. Evid. 702.
4Silverpop Sys. v. Leading Mkt. Techs., Inc., 641 F. App'x 849 (11th Cir. 2016) (citing Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir. 1975)).
5Morris v. Wal-Mart Stores, Inc., 330 F.3d 854, 858 (6th Cir. 2003).
9Fed. R. Civ. P. 26(a)(2).
10Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 594 (1993).
11Fed. R. Evid. 702.
12State Farm Fire & Cas. Co. v. Bell, F. Supp. 3d 1085, 1098 (D. Kan. 2014); Bass v. Hardee’s Food Sys., 982 F. Supp. 1041, 1043 (D. Md. 1997).
13Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 594 (1993).
14Garrity v. Wal-Mart Stores East, L.P., 288 F.R.D. 395, 402 (W.D. Ky. 2012).
15Fed. R. Evid. 702 advisory committee’s note (2000).
16Peterson v. Scotia Prince Cruises, Ltd., 323 F. Supp. 2d 128, 129-30 (D. Me. 2004).
17Wisdom v. TJX Cos., 410 F. Supp. 2d 336, 341-43 (D. Vt. 2006).
18Garrity v. Wal-Mart Stores East, L.P., 288 F.R.D. 395, 402 (W.D. Ky. 2012).
19Silverpop Sys. v. Leading Mkt. Techs., Inc., 641 Fed. App'x 849, 853 (11th Cir. 2016) (citing Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180 (5th Cir. 1975)).

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