Thursday, April 5, 2018

JURORS' PRACTICAL ADVICE FOR TRIAL LAWYERS


Thank you Mike Zuckerman for sending me the Honorable Amy J. St. Eve’s and Gretchen Scavo’s Cornell Law Review article entitled “What Juries Really Think: Practical Guidance for Trial Lawyers.” I’ve already passed the article on to my students at Seattle University Law School, and in the future I will use its findings when discussing my beliefs about what is appropriate and inappropriate conduct for trial lawyers. The following is the article:
“What do juries really think about lawyers? What makes jurors tick? What do lawyers do that irritates jurors? What can lawyers do better in the courtroom from the jury’s perspective? These are the questions at the heart of this article, which provides useful insight gleaned from more than 500 jurors who served in federal district court trials in Chicago, Illinois from 2011 to 2017. In this article, we present our analysis of questionnaire responses from those jurors, as well as their verbatim commentary, and distill both into practical guidance for trial attorneys looking to improve their trial skills.”

Thursday, March 29, 2018

BOB DEKLE’S REVIEW OF JURY SELECTION HANDBOOK

George (Bob) Dekle

Bob Dekle recently reviewed the new book Jury Selection Handbook as follows:

An Excellent Exposition of a Difficult Topic

Of all the portions of the trial, the part that I hated the most was jury selection. I had a keen sense of both how important it was and how inadequate I was to do a good job of it. I had not been practicing law very long before I decided that in most cases the trial is over when the judge says “Swear the jury.” If at that point you have the wrong jury, there is not much you can do—you’re not going to win. If, on the other hand, you have the right jury, there are many things you can do from that point forward to snatch defeat from the jaws of victory.

Despite the fact that it was a challenge to conduct a good jury selection, it was easy to see when other lawyers were conducting a bad jury selection. After a couple of decades of watching other lawyers fall flat on their faces, and falling flat on my face more times that I care to recall, I finally learned how to conduct a moderately competent jury selection. It wasn’t spectacular by any means, but at least I didn’t embarrass myself, and I was usually able to weed out the problem jurors. If only there had been a book like Jury Selection Handbook back when I was a rookie trial advocate. I would have read it, re-read it, learned from it, and chalked up W’s in quite a few cases that I had to put in the L column.

Jury Selection Handbook is a well-organized, easily understood explanation of the nuts and bolts of how to go about picking a jury. The pages are filled with gems of practical wisdom that it took me years to learn in the school of hard knocks, and the books prescriptions for organizing, planning, and executing the voir dire examination are on the mark.

One important point the book stresses, and a point which many young lawyers seem to miss, is that the primary purpose of jury selection is juror elimination. The most important thing you do in voir dire is to identify and eliminate the jurors who are going to torpedo your case. All other considerations are secondary to this objective.

The book does make a few points that I’d like to quibble with, however. On pages 164-165 it recommends liberal use of open-ended questions. Open-ended questions always frightened me because they completely surrendered control of the situation to an unknown party. Pages 152-153 tell the reader not to worry about tainting the pool, and this might not be a problem in a large jurisdiction where hundreds or even thousands of jurors might be summoned at a time. In the small jurisdictions where I practiced, open-ended questions would often taint an entire pool, delaying a trial for a month to six weeks before the next jury was scheduled to come in. A couple of zingers I’ll never forget:

Q: How is it that you know the defendant? A: Well, I don’t know him personally, but when I worked at the Constable’s Office, we served a lot of warrants on him.

***

A: No, I can’t be fair in this case. [A rape case].

Q: And why is that? A: Because the defendant raped my daughter.

I’m not a big fan of the forced-choice form of questioning recommended on pages 165-169. A forced-choice question works like this:

Q: Some people say cases only go to trial when there are genuine issues to be resolved. Others say that cases go to trial simply because one side or the other is too hard-headed to admit they’re wrong. Which of those opinions do you have?

I’m willing to wager that a large percentage of potential jurors on any panel never gave the issue a thought, and asking such a question only serves to embarrass them. I’m also willing to wager that a lot of potential jurors are like me—they resent being forced to choose among preselected answers which almost certainly do not reflect the nuances of a thoroughly considered opinion. When presented with a binary forced-choice question, my usual response is to get irritated and say “None of the above.”

One point the book made which I don’t think was made forcefully enough was on page 164 when talking about body language. In emphasizing the importance of picking up on nonverbal cues, the book listed a number of nonverbal actions and gave the conventional wisdom as to what those actions meant. In one sentence at the end of a paragraph, the book makes the point that the conventional wisdom of what these actions mean “ain’t necessarily so.” As Philip Houston and Michael Floyd say in "Spy the Lie: Former CIA Officers Teach You How to Detect Deception," such cues are not signposts pointing unerringly at what the conventional wisdom says they stand for. They are instead simply clues that the interrogator might want to look further to see whether they are truly signaling what they are supposed to stand for.

For example, the arms crossed stance is supposed to signal that the listener isn’t receptive to what you’re saying. Maybe. It may be that your listener is simply cold. Or he may be a narcissistic young man who wants to put his fists under his upper arms to enhance the size of his biceps. Use common sense and don’t slavishly follow the conventional wisdom about body language signals. You've been reading body language all your life. Where do you think that "gut reaction" that the authors talk about on pages 288-289 comes from?

Other than the foregoing quibbles, I found Jury Selection Handbook to be an excellent, informative book. I was responsible for supervising and training young prosecutors for over 20 years, and I taught a prosecution clinic for 10. If I were still in the business of training young prosecutors, I'd put this book on my required reading list.

Friday, March 23, 2018

"MOST COMPREHENSIVE ANALYSIS OF JURY SELECTION IN THE MARKET"

Judge Michael Marcus (ret.)

Judge Michael D. Marcus (Ret.) wrote this review of Jury Selection Handbook

Jury Selection Handbook is the most comprehensive analysis of jury selection in the marketplace and a “must” read for every lawyer, regardless of experience. Ronald Clark and Thomas O’Toole are to be congratulated for their exhaustive discussion of every phase of voir dire, from its preparation, to the strategies behind successful voir dire, to the evaluation of jurors and to the legal tactics incidental to voir dire. The new lawyer will find comfort in the discussions on the basic rules and premises for jury selection; the veteran lawyer will enjoy the chapters on the subtleties and psychology behind voir dire. All will find the book a necessary addition to their legal library.



Sunday, March 18, 2018

PROFESSOR RONALD L. CARLSON REVIEWS JURY SELECTION HANDBOOK

Professor Ronald L. Carlson


Ronald L. Carlson, Professor at University of Georgia Law School, reviewed Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection. Professor Carlson has written 16 books on evidence, trial practice and criminal procedure, including Carlson on Evidence, which is in its 5rh Edition. He has lectured on evidence and litigation throughout the country. The Georgia Trial Lawyers Association presented him with a Lifetime Achievement Award. This merely scratches the surface of Professor Carlson’s achievements and his biography can be found here.
The following is Professor Carlson’s review of Jury Selection Handbook:
The central place of jury selection in the American litigation system is unquestioned.  It is the key determinant when assessing whether a lawyer will be successful at trial.  Jury selection has been correctly described as the most difficult challenge in litigation.  Fortunately for attorneys and law students alike there is a little gem which effectively demystifies the process.  This is Clark and O’Toole, JurySelection Handbook.

Law students will profit from some of the basic explanations of nuts and bolts topics like the methods for asserting peremptory challenges.  Lawyers will be alerted to tips for assessing leadership potential.  When peremptory challenges run short for the litigator, it is critical that she prioritizes her strikes.  The importance of doing so is distilled in the phrase from the text:  “In other words, if you are going to have a bad juror on the jury, you at least want it to be someone who is not going to be an opinion leader.”  Advice for spotting such persons then proceeds.

Commendable wisdom is typically shared on practical topics which appear throughout the book.  These include strategies for questioning jurors, challenges for cause, techniques for evaluating prospective jurors, and leaving the jury at the end of voir dire with a positive view of your case.  The authors are especially capable of imparting this advice.  Ronald Clark has informed lawyers and law students for years about pretrial skills, opening statements and closing arguments, evidence law strategies, and cross-examination tactics.  Thomas O’Toole is an experienced jury consultant who has provided jury selection services in a broad array of cases.  As wise practitioners of their professions, the authors supply a handy checklist at the end of the book.  The checklist provides a review of the important subjects contained in the text.  

The Jury Selection Handbook will be used by law students as well as attorneys.  For the academic arena, the book incorporates a special chapter of assignments for experiential learning.  Law students in prosecutor or defense clinics or those helping in legal aid offices will be admirably prepared to assist in their respective offices by completion of the experiential exercises.  The exercises also prepare the student to face the challenge of courtroom practice with his or her future law firm or other legal office. 

In one of the chapters the authors impart advice on how to make a favorable impression with jurors by being friendly, avoiding distracting attire, and converting nervousness to energy.  In similar fashion, this text makes a highly favorable impression on the reader by its comprehensive and practical approach to jury selection.                 



Sunday, March 4, 2018

THE SINCERE TRIAL LAWYER

Lincoln at time of the Cooper Union address

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The keys to trial persuasion are to be sincere and to be able to project that sincerity. Sincerity, more than eloquence, a good appearance or any other attribute, is what really matters in trial advocacy.

Sincerity in the trial context means that the lawyer believes the cause is just. It is helpful to look to how Abraham Lincoln as a trial lawyer approached trial work. The first Lincoln lesson reviewed his creed, which reads in part: “I must stand by anyone that stands right. Stand with him while he is right, and part with him when he goes wrong.” This second lesson continues to explore that theme.

While a trial lawyer can never state a personal opinion to a jury about the justness of the cause, no prohibition exists that bars a lawyer from being sincere about the cause. Sincerity is the quality that makes for a great communicator in trial. You are your case. If you are sincere and can project that to the jurors, you will be able to effectively convey your case to them.

Recognizing that above all else sincerity matters when it comes to communication, here is a newspaper reporter’s account of what he observed at Lincoln’s Cooper Union speech, which is the subject of Harold Holzer’s book Lincoln at Cooper Union: The Speech that Made Abraham Lincoln President, Simon and Schuster (2004):

"When Lincoln rose to speak, I was greatly disappointed. He was tall, tall, oh, so tall, and so angular and awkward that I had for an instant a feeling of pity for so ungainly a man . . . His clothes were black and ill-fitting, badly wrinkled – as if they had been jammed carelessly into a small trunk. His bushy head, with the stiff black hair thrown back, was balanced on a long and lean head-stalk, and when he raised his hands in opening gesture, I noticed that they were very large. He began in a low tone of voice – as if he were used to speaking out-doors and was afraid of speaking too loud.

"He said, ‘Mr. Cheerman,’ instead of ‘Mr. Chairman,’ and employed many other words with an old-fashioned pronunciation. I said to myself, ‘Old fellow, you won’t do; it is all very well for the Wild West, but this will never go down in New York.’ But pretty soon he began to get into the subject; he straightened up, made regular and graceful gestures; his face lighted as with an inward fire; the whole man was transfigured.

"I forgot the clothing, his personal appearance, and his individual peculiarities. Presently, forgetting myself; I was on my feet with the rest . . . cheering the wonderful man. In the closing parts of his argument you could hear the gentle sizzling of the gas burners."

Lincoln’s sincerity and conviction came across in his Cooper Union address and swayed the audience. Public speaking research suggests that two things emerge as the most powerful in persuasion: sincerity and conviction of the speaker. And, this explains why Lincoln had this effect on his audience.

We devote a good deal of space to the subject of sincerity in the Trial Advocacy book. In case you missed this and other posts regarding Lincoln, you can find them here.