Sunday, September 8, 2019

PALSGRAF AND IMPROVING YOUR LEGAL WRITING.


In a book I edited, entitled The Appellate Prosecutor: APractical and Inspirational Guide to Appellate Advocacy, the Honorable Paul Turner, who when the book was published was Presiding Justice of the California Court of Appeals Second Appellate District of Los Angeles, California, contributed a chapter. Judge Turner’s chapter focuses on the art of writing, specifically on crafting the short declarative sentence, which he referred to as “The Key to Good Legal Writing.”
Here is an excerpt from Judge Turner’s chapter:
The most important way to improve your legal writing is to develop the skill of writing the short declarative sentence. Some people do not need to use short declarative sentences. In 1995, the Houston Chronicle reported that Alan Greenspan, the Chair of the Federal Reserve Board, said, “I spend a substantial amount of my time endeavoring to fend off questions and worry terribly that I might end up being too clear.” In 1992, the Wall Street Journal reported that one wag suggested that Alan Greenspan’s tombstone should read, “I am guardedly optimistic about the next world but remain cognizant of the downside risk.”
But as an appellate advocate, your job is to be clear; not to be uncertain like Mr. Greenspan. Your task is to develop the skill of writing the short declarative sentence so that words march promptly in proper order towards a logical conclusion. That statement of your mission warrants repeating. Your task is to develop the skill of writing the short declarative sentence so that words march promptly in proper order towards a logical conclusion.
Here is an example of this important way of communicating, and it is from the famous case of Palsgraf v. Long Island Railroad Company 248 N.Y.339, 340–341 (1928). It is the first paragraph of Chief Judge Benjamin Cardozo’s famous opinion. In law school, professors use the Palsgraf opinion to discuss proximate cause and negligence. More importantly, it is the example of great legal writing utilizing the short declarative sentence as a way to communicate. Here, with minor bracketed interruptions, is the first paragraph of Palsgraf:
“Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. [Stop reading now. How many words were the in the first sentence? 18. Now keep reading.] A train stopped at the station, bound for another place. Two men ran forward to catch it. [Stop reading again—how many words in this sentence that describes the hurried conduct of two different human beings in relation to a train leaving a station? Seven words—that is all; now start reading again.] One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.”
The longest sentence in this first paragraph of Palsgraf is 27 words, the one that begins, “A guard on the car...” That sentence consists of a series of short phrases strung together. Look at them: “A guard on the car, [5 words and a comma] who had held the door open, [6 words and a comma] reached forward to help him in, [another 6 words and a comma] and another guard on the platform pushed him from behind” [10 words and a period].
The most important thing about this whole passage is a reader knows exactly, yes, exactly what happened. This accident happened on August 24, 1924, at the East New York Station in Brooklyn and everybody who reads the first paragraph of Palsgraf knows what happened 80 years later. That is communication, that is the power of the written word.
For the remainder of Judge Turner’s chapter and more on effective appellate advocacy, consider acquiring The Appellate Prosecutor: A Practical and Inspirational Guide toAppellate Advocacy. And by the way, it’s not just for prosecutors who are appellate advocates.




Saturday, August 17, 2019

JUROR BIAS—WHAT CAN BE DONE ABOUT IT?

Paul Luvera

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Faced with juror bias during deliberations, the foreman took matters into his  own hands. At the conclusion of deliberations, the foreman told the media, “The jury was biased.” Politically biased. He said that a few of the jurors were aligned with the political views of the defendants in a first-degree assault case, and this led to seven days of jury deliberations, ending with a hung jury with nine of the twelve jurors in favor of convicting the defendants.

In an effort to dislodge the three jurors from what he perceived as their bias, the foreman took an unusual step in order educate the recalcitrant jurors about implicit bias. He asked the judge to allow the deliberating jury to re-watch an anti-bias video that the prospective jurors are required to watch during their orientation. A video on unconscious bias is also show in the  U.S. District Court of Western Washington and it can be viewed here.  Judge Kristin Richardson granted the request and it was shown. But, the jury foreman said that it “didn’t do any good.”[1]

The circumstances that resulted in criminal assault in the first degree charges were political in nature. On the night of Trump’s inauguration on January 20, 2017, defendants Marc and Elizabeth Hokoana, who were Trump supporters, went to the University of Washington campus where right-winger Milo Yiannopoulos was schedule to speak. The evidence showed that Marc Hokoana fired a pepper spray at anti-fascist protesters and Elizabeth Hokoana shot Joshua Dukes in the abdomen. Elizabeth Hokoana claimed self defense, saying that she shot Dukes because he had a knife and was going to cut her husband.

Can anything be done to eliminate juror bias from juror decision-making?

A recent article by Thomas M. O’Toole, Ph.D. entitled, “New Survey Data on Whether Jurors Follow the Law”[2] paints a grim picture in regards to whether jurors are able to follow the law that runs contrary to their biases. O’Toole’s company Sound Jury Consulting conducted a national online survey of 400 jury-eligible respondents on the issue. The survey concluded that “a shocking 75 percent of all respondents agreed that, ‘If the judge’s instructions about the law that applies to the case went against my beliefs about right and wrong, I would tend to decide the case based on my beliefs about what is right or wrong.”

Research has established that people have difficulty identifying their own biases. Further, research has shown that people are mistaken if they think that they can set aside their prejudices of which they are aware. Consequently, the premise that a jurors are qualified to serve if they assure the court that they can set aside their biases is faulty.[3]

Considering the research, one could conclude that given the current law regarding how challenges for cause are ruled on—if the prospective juror can set aside an actual bias, then the challenge should be denied—nothing can be done to eradicate juror bias. In Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection we discuss challenges for cause at length.

Paul Luvera, retired founder of Luvera Law Firm, the only Washington lawyer who has been inducted into the National Trial Lawyers Hall of Fame and referred to as the best trial lawyer west of the Mississippi, has proposed solutions in his article “Washington Law on Jury Challenges for Bias Undermines Litigants’ Constitutional Right to an Impartial Jury.” Lavera states, “The simplest solution would be for the law to provide that  once a trial judge has found that a prospective juror has actual bias, granting a challenge to that person serving on the jury should be mandatory despite assurances that the juror could disregard the bias.”[4]

Another solution that Luvera offered is as follows: “Another reasonable solution would be for the judge to apply the same standard in evaluating a prospective juror’s bias as applied under the Judicial Conduct Code . . . Applying this test, the court could appropriately exercise its discretion by disqualifying a prospective juror from serving if his or her impartiality could reasonably be questioned irrespective of any assurances about ‘following the law’ or ‘disregarding’ such bias in deliberations.”[5]

Yet another of Luvera’s solutions is for the judge to apply an “appearance of fairness standard.[6]

Luvera’s proposed solutions deserve serious consideration. Challenges for cause are intended to keep people with actual bias out of the jury room, and adoption of the solutions could ensure that challenges for cause do what they are designed to do. A jury foreman should not have to try to deal with a biased seated juror.








[1] Greg Gilbert, Seattle Times (August 13, 2019).
[2] Thomas M. O’Toole, Ph.D., “New Survey Data on Whether Jurors Follow the Law,” King County Bar Bulletin, 9 (May 2019)
[3] Paul Luvera, “Washington Law on Jury Challenges for Bias Undermines Litigants’ Constitutional Right to an Impartial Jury”, 33, NW Lawyer (May 2019)
[4] Id. at 35.
[5] Ibid.
[6] Ibid.

Tuesday, August 13, 2019

GREAT TRIAL LAWYERS STEAL


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“Lesser artists borrow; great artists steal.” This is a statement attributed to Pablo Picasso. The same proposition holds true for great trial lawyers. Lesser trial attorneys borrow; great trial lawyers steal. The greats study what other trial lawyers have done, they remix it and transform it into their own work of art. This is particularly true of closing argument.


Vincent Bugliosi

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Three artists are featured here. First, Vincent Bugliosi, who prosecuted Charles Manson and was hands down one of America’s greatest trial lawyers, having successfully prosecuted 105 out of 106 felony jury trials (including 21 murder convictions). Vincent Bugliosi has been the subject of several articles here on summation, including:  The Winning Closing Argument: How to Conclude; Successful Closing Argument Strategies; and The Winning ClosingArgument: Best of Bugliosi.

Francis Wellman





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The second trial lawyer is Francis L. Wellman, an Assistant District Attorney and trial lawyer in New York who became famous for his skills as a trial advocate in the late 1800s and as the author of The Art of Cross-Examination, which is still in print today.


George R. (Bob) Dekle, Sr.





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The third is George R. (Bob) Dekle, Sr. who served as an Assistant State Attorney in Florida's Third Judicial Circuit from 1975 through 2005, during which time he prosecuted serial killer Ted Bundy resulting in a conviction of Bundy and the death penalty. Dekle is the author of several books, including Prairie Defender: The Murder Trials of Abraham Lincoln and Cross-Examination Handbook: Persuasion Strategies and Techniques (I am Bob’s co-author along with William Bailey).


Bob Dekle’s new book proves once again that Picasso’s statement that “great artists steal” is a verity. Dekle’s new book is Six Capsules: The Gilded Age Murder of Helen Potts, Kent State University Press (2019). Six Capsules tells the story of Wellman’s prosecution of Carlyle Harris for the murder of Helen Potts. Dekle’s book revealed, to me at least, that Charles Manson’s prosecutor Vincent Bugliosi stole from Wellman.


I have repeatedly recommended Bugliosi’s book about the O. J. Simpson case, entitled Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder because it is a guide for how to craft closing argument. Trial lawyers can take gems from this treasure trove of arguments and polish them for their own use. When Bugliosi’s book editor asked him to write out the closing he would have given if he had prosecuted Simpson, Bugliosi declined, saying that it would be unrealistic because he normally put three to four hundred hours into prepping his own closings and for that case the closing would have filled a thousand pages of transcript. Instead, he wrote out some of his arguments, which are in bold type in the book. Bugliosi’s “Final Summation” chapter is jammed with arguments and runs a hundred pages.

In prior articles, I quoted arguments from Bugliosi’s book as jewels that could be stolen. Little did I know at the time that Bugliosi has stolen them. Dekle’s book identified Bugliosi as the perpetrator of thefts from Wellman.

In “The Winning Closing Argument”, I wrote:

Octopus Analogy - This is one that, as Bugliosi stated “would have been ideal for the Simpson jury at the beginning of closing argument. . .” Here is Bugliosi’s argument:

“I wonder if any of you folks have read Victor Hugo’s account of the octopus. He tells us of how it doesn’t have any beak to defend itself like a bird, no claws like a lion, nor teeth like an alligator. But it does have what could be called an ink bag, and to protect itself when it is attacked it lets out a dark fluid from this bag, thus making all of the surrounding water dark and murky, enabling the octopus to escape into the darkness.

“Now I ask you folks, is there any similarity between that description of the ink bag of the octopus and the defense in this case? Has the defense shown you any real, valid, legitimate defense reasonably based on the evidence, or has it sought to employ the ink bag of the octopus, and by making everything dark around Mr. Simpson, tried to let him escape into the darkness.

“I intend to clear up the water which defense counsel have sought to muddy, so that you folks can clearly see the evidence, the facts, the issues in this case, so that you can behold the form of the retreating octopus and bring this defendant back to face justice.”

Now, that’s a compelling analogy that Bugliosi modified slightly to fit a situation where the other side has set out to confuse and confound.

Little did I know when I wrote the article that Bugliosi had stolen it from another great artist—Francis Wellman. Bob’s Six Capsules, on page 152, describes Wellman’s summation in the prosecution of Carlyle Harris:

“Wellman first observed that when Taylor (defense counsel) pointed out the prosecution’s failure to prove that Harris had worked as an actor, he tacitly admitted that the prosecution had proved everything else that Wellman had said in his opening statement. He next mentioned that Taylor had promised ten days of defense testimony and delivered only two, and the defense that was presented was like the defense of an octopus. When attacked by a predator, the octopus sprays a cloud of black ink to befuddle its attacker and slips away in the confusion. The defense was nothing more than a cloud of black ink, and the jury should not allow the defense to escape into that cloud.”

Bob, as always, contributes his sage advice to the reader  concerning the use of this octopus argument as follows:

“. . . Prosecutor today still use Wellman’s octopus analogy, but it is a strategy that is fraught with peril. Appellate courts will sometimes approve the octopus analogy as fair comment on the defense, but not always. This is especially true when the prosecutor is the guardian of the truth. . .”

Also, in the “The Winning Closing Argument” I discussed another of Bugliosi’s arguments—the Rope Analogy as follows:

Rope Analogy – This is an argument that Bugliosi writes that he gave in a double-murder case and that the prosecutors could have used in the Simpson case:

“I think that counsels’ problem is that they misconceive what circumstantial evidence is all about. Circumstantial evidence is not, as they claim, like a chain. You could have a chain spanning the Atlantic Ocean from Nova Scotia to Bordeaux, France, consisting of millions of links, and with one weak link that chain is broken.

“Circumstantial evidence to the contrary, is like a rope. And each fact is a strand of that rope. And as the prosecution piles one fact upon another we add strands and we add strength to that rope. If one strand breaks – and I’m not conceding for one moment that any strand has broken in this case – but if one strand does break, the rope is not broken. The strength of the rope is barely diminished. Why? Because there are so many other strands of almost steel-like strength that the rope is still more than strong enough to bind these two defendants to justice. That’s what circumstantial evidence is all about.”


At page 160 in Six Capsules, Dekle notes: "Wellman argued that 'Circumstantial evidence, gentlemen, is not like a chain, where one weak link can weaken the entire chain. It is like a rope or cable; each fact is a strand of that rope; and as we pile one circumstance on another, one fact on another, so we add strands and strength to the rope until we get a cable strong enough to bind the prisoner to justice.'"

Where can you find the artwork of great trial lawyers? Here are some resources for great opening and closing arguments:

Naturally, at the top of the list are Bugliosi’s books: Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder and Helter Skelter.

Next on the list is Joel Seideman’s In the Interests of Justice. This book includes transcripts of notable cases with trial lawyers effectively advocating with storytelling; analogies; phrasing; humor; pathos; logic; themes and so much more.

Redeeming the Dream: Proposition 8 and theStruggle for Marriage Equality by David Boies and Theodore Olson contains tips and examples of great advocacy.

Last on this short list is Bob Dekle’s Six Capsules.

This leaves the question: If Bugliosi stole the octopus and rope arguments from Francis Wellman, from whom did Francis Wellman steal them?



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