The Sudoku Jury, Redux: Are the Lawyers to Blame?

[WSJ_law_blog]

A competitor works to solve a Sudoku puzzle during the Sudoku Tournament in Philadelphia. (Credit: AP/Joseph Kaczmarek)


Last week, as we sifted through numerous reports about the mistrial declared in Australia when it was discovered that members of the jury had been playing Sudoku, one comment struck us: “Legislating for attentiveness is very difficult,” Australia’s Attorney General and Minister for Justice, John Hatzistergos, told The Australian. “What we can do is to streamline these very lengthy trials.”

For those LB’ers who missed it, here’s what happened: After 105 witnesses and three months of evidence, Judge Peter Zahra aborted a drug trial that cost $1 million, and discharged the jury after the jury forewoman admitted that she and four other jurors had been playing Sudoku since the second week of trial. Judge Zahra, who had previously commended the jury for its diligence, told the forewoman that the Sudoku players had let down their fellow jurors and all involved in the trial.

To us, this seems a bit harsh. Had they really let down those involved? What if, as the forewoman told the court, the numbers game helped her concentrate during the long trial?

We checked in with a couple prominent trial lawyers to get their take. Steven Thomas, a former S&C litigator who left to start a plaintiffs firm — Thomas, Alexander & Forrester — said, “When you have long service, no one can sit on the edge of their seat all day long.” Thomas, who has heard of jurors doing crossword puzzles and playing hangman with each other, added: “Lawyers aren’t that exciting. But your job isn’t to entertain, it’s to persuade. And if the jurors are playing Sudoku or falling asleep, you’re not doing your job.”

But over at Morrison & Foerster, Jordan Eth, who defends companies against securities class-actions, thinks the issue of jury diversions is less cut and dried. “I have no idea what the law is down under,” Eth told the Law Blog. “But did you ever get an A in a class where you were doodling?” He said: “Some people close their eyes when they focus. Others need a radio to study. I’m in favor of anything that aids juror comprehension. Can I say off the top of my head that playing Sudoku reduces comprehension? For me it would, but who knows?”

As for the idea that it’s the lawyer’s job to keep a trial interesting, Eth says, “Lawyers can have an inflated opinion of themselves. ‘It was my job to keep them interested.’ Well, jeez, how compelling can it be? You’re supposed to give an Oscar winning performance on some drug case, day after day?”

LB’ers: we got good comments on last week’s post, and we’d love to hear your further thoughts.