Thursday, September 21, 2017

JURY SELECTION HANDBOOK - BOOK LAUNCH

Thomas O’Toole Ph.D., and I have co-authored Jury Selection Handbook: The Nuts and Boltsof Effective Jury Selection, which will be published by Carolina Academic Press in November 2017. Tom is President of Sound Jury Consulting and has practiced across the nation as a jury consultant since 2003 in nearly every litigation type. Jury Selection Handbook is part of the Lawyering Series, edited by Roger I. Abrams of Northeastern Law School.

Jury selection can be a terrifying experience for even the most seasoned trial attorneys. Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection dissects the process and highlights the strategic choices available to trial attorneys at every step of the process. This book is intended for law students and fledgling lawyers who are acquiring their jury selection skills, as well as veteran trial lawyers who want to refresh and expand their approaches. The book provides practical guidance for how to prepare for jury selection; craft motions and responses to motions regarding voir dire; exercise challenges; make favorable impressions of counsel, the client, and the case; break the ice and question prospective jurors; and evaluate jurors and tap into hidden beliefs and pre-dispositions. The book can be adopted for law school trial advocacy courses and clinics as well as continuing legal education seminars. Online appendices provide examples of jury questionnaires, motions and responses to motions, and transcripts of a dozen complete jury selections in both federal and state courts and civil and criminal cases. 

If you are a professor teaching in this field you may request a complimentary copy. 

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Tuesday, September 19, 2017

TRIAL ADVOCACY - THE INSIDE STORY: DAVID BOIES AND THEODORE OLSON

David Boies

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In their book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, Penguin Group (2014), David Boies and Theodore Olson take the reader inside the trial of their case challenging California’s Proposition 8. The book explores everything from preparing the complaint through closing argument and then the appeal to the United States Supreme Court. The book informs the reader about how highly skilled trial lawyers prepare for trial and perform in trial. It also covers the stress, fears and elation that trial lawyers and clients experience in a high profile case. The following are just a few examples from the book to illustrate how it tells the story of excellent pretrial and trial advocacy as well as what effect this landmark case had on the lawyers and others involved in it.

The Complaint

Boies and Olson were supported by a band of lawyers from their two law firms. Two lawyers from Gibson Dunn, Chris Dusseault and Theane Evangelis, were charged with the task of crafting the first draft of the complaint. Ms. Evangelis, who had clerked for Supreme Court Justice Sandra Day O’Connor and was new to the Gibson Dunn firm, started out by running off the complaints and the briefing in pertinent Supreme Court cases, including the Loving v. Virginia, 388 U.S. 1 (1968), and the complaints and briefs in state cases on same-sex marriage. Redeeming the Dream describes what this meant to the her:

“She was acutely sensitive to minority rights and all the social and psychological implications of discrimination. This interest had only increased during her time with Justice O’Connor, who, despite being a moderately conservative jurist, had voted to uphold affirmative action in education and a woman’s right to abortion. For Theane, the chance to play a role in a case that was concerned with minority rights and was quite likely to end at the Supreme Court was a dream come true.”

The authors describe what next happened in the process after the initial draft was completed: “Theane’s initial draft was revised by the entire California team. It was finally polished by Ted and his Washington colleagues Matt McGill and Amir Tayrani, and by David and his partners Bob Silver and Jeremy Goldman.” 

Redeeming the Dream describes the gist of the complaint and why it was filed in federal court and rationale for filing the complaint in the Northern District of California.

Case Themes

The development of a case themes and utilizing them in trial is at the core of excellent trial advocacy, and Redeeming the Dream returns again and again to the importance of themes. For instance, when David Boies spoke to the media to announce that the complaint had been filed, he stated the theme: “. . . The purpose of our Constitution and the purpose of our court system is to make sure that the promise of our Constitution is extended to every American. That’s what this lawsuit is about.” Ted Olson delivered the opening statement at trial; he led with the case theme: “This case is about marriage and equality. Plaintiffs are being denied the right to marry and equality under the law.”

Cross-Examination

David Boies is a legendary cross-examiner. Redeeming the Dream provides the reader with insights into his mastery of the art of cross-examination. Read more about his cross-examination strategies and techniques here.

The story of David Boies’s and Theodore Olson’s advocacy in this landmark civil rights case has also been chronicled in the documentary film The Case Against 8.

Saturday, September 9, 2017

THE REAL DREAM TEAM: DAVID BOIES & TED OLSON

David Boies & Theodore Olson
When the two adversary lawyers in the Bush v. Gore case, David Boies and Theodore Olson, teamed up to challenge California’s Proposition 8 in a federal lawsuit, they created the TRUE LEGAL DREAM TEAM. They also proved to be exceptionally fine co-authors when they recounted their pretrial preparation, trial and appellate experiences in their book entitled, Redeeming the Dream:Proposition 8 and the Struggle for Marriage Equality, Penguin Group (2014).

Redeeming the Dream is a must read for trial and appellate lawyers as well as those interested in this historic marriage equality case. Boies and Olson provide an insider’s view of how to prepare for trial and try a case as well as how to advocate on appeal. It is a superb tutorial on trial and appellate strategies and techniques with illustrations from the case.

The two lawyers divvied up the lead counsel roles based upon their proven skills; David Boies took the lead for the trial phase; and Ted Olson was lead counsel for their appearance before the United States Supreme Court. Ted Olson who was first onboard described how the team was formed in this way:

“The process of finding the ideal lawyer for the role we had in mind took several weeks while we were locating the right plaintiffs, fine-tuning our strategy, and preparing the case. But the epiphany, when it came, struck all of us as a perfect solution. During a Saturday conference call in May to discuss strategy, I suggested my Bush v. Gore opponent, and by then friend, David Boies, California’s motto ‘Eureka’ (‘We have found it’), leapt to mind.

“David had handled appeals, including the Supreme Court, but was best known nationally as an outstanding and extraordinarily successful trial lawyer. I had done trial work, but was better known as an appellate lawyer. It seemed perfect. Democrat, Republican. Bush v. Gore. Trial lawyer, appellate lawyer. . .”

While most of the chapters in Redeeming the Dream are written by the co-authors, some of the chapters have single authors. For instance, Ted Olson wrote Chapter 9 describing “David’s Cross-Examination” and David Boies wrote Chapter 10 that examines “Ted’s Closing.” This division of the authorship serves the reader well because the two authors have formed a mutual-admiration society and the sole author is turned loose to fully expound upon the skills of his co-counsel. Examples of Olson’s effusive praise and description of David Boies skills as across-examiner can be found here.

The story of David Boies’s and Theodore Olson’s advocacy in this landmark civil rights case has also been chronicled in the documentary film The Case Against 8.

Saturday, August 5, 2017

ANATOMY OF LINCOLN’S MURDER TRIALS

George (Bob) Dekle’s book entitled PrairieDefender:  The Murder Trials of AbrahamLincoln provides a brilliant anatomy of Lincoln’s murder trials. It is a great read on multiple levels. First, it reveals the true nature of Lincoln’s trial practice, debunking myths with solid evidence and providing an accurate description of his trial work. For instance, while some historians have asserted that Lincoln shunned any criminal cases in favor a civil trial practice, Dekle not only chronicles his murder trials but also notes that he tried “. . .approximately one per year for his entire career, not a shabby number for a general practitioner in a sparcely populated jurisdiction.” For any Lincolnophile seeking to fully understand the man and his law practice, this book is a must.

On a second level, Prairie Defender is packed with intriguing trial war stories. For example, the case of People versus Archibald and William Tailor was so remarkable that as Dekle states, “Lincoln tried many interesting cases in his career, but the facts of the case under consideration were so bizarre that he felt compelled to reduce them to writing.” How often does it happen that an alleged murder victim is found very much alive?

Some of the stories and anecdotes in Prairie Defender are amusing. In the People versus Anderson trial, the prosecutor (who had arrived after the trial had commenced) in closing argument pointed at a young man at the defense table and said, “Gentlemen of the jury, if you wanted any additional evidence of this man’s guilt, it would only be necessary for you to recur to his boldness and impudence during this trial. You can see guilt written all over his countenance.” At that point the young man rose and said, “General Linder, you are mistaken; I am not the criminal, but my name is Rosette; I am a lawyer, and one of the counsel for the defendants.”

Third, Dekle, who is a veteran trial lawyer having tried over a hundred homicide cases, provides astute analyses of Lincoln’s murder trials which are instructional for trial lawyers who want to understand how they can improve their craft. Here is a taste of the author’s discernment:

“A prosecutor needs five ingredients to ensure a conviction: (a) an agreeable jury, (e) an egregious crime, (i) an innocent victim, (o) an odious defendant and (u) undeniable guilt. Of  the five vowels, (a) is the most important, and the next three, (e), (i), and (o) are essential for the prosecutor to have that critical first ingredient. No matter how undeniable the guilt of the accused, if the jurors are not upset about the crime, if they dislike the victim, and if they sympathize with the defendant, the verdict is going to be not guilty. On the face of things, the Wyant case had all the vowels.. . . (Dekle goes on to apply the vowels to the case).”


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These are but a few examples of why Prairie Defender is both engaging and edifying. This is a book that belongs in the library of anyone with an interest in trial work, Lincoln or just a good read.