Sunday, March 18, 2018


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


Lincoln at time of the Cooper Union address

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.

Sunday, February 18, 2018


Dr. Ken Broda-Bahm who writes the Persuasive Litigator Blog recently wrote a review of Jury Selection Handbook entitled Know the Principles: A Review of the ‘Jury Selection Handbook.’” Here is Dr. Broda-Bahm’s post:

Jury selection presents a difficult challenge to trial lawyers, and calls for skills that are generally out of step with the rest of what they’re expected to master in order to get from filing to verdict. At the point of empaneling a jury, lawyers are expected to listen more than they speak, to learn more than they teach, and to embrace the case weaknesses and opposition that they would normally try to downplay. It is a subtle and demanding situation, and one that calls for not just advocacy, but for friendliness, sensitivity, and all the traits of genuinely good communication.

For law students and for practicing attorneys who have not yet mastered jury selection, there is a new resource focusing broadly on the fundamentals. The 2018 book, Jury Selection Handbook: The Nuts ands Bolts of Effective Jury Selection, is available in both print and ebook versions and is published by Carolina Academic Press as part of “The Lawyering Series,” to support law schools and law professors in providing more innovative and practical content. The authors are Ronald H. Clark, Distinguished Practitioner in Residence at Seattle University’s Law School and Thomas M. O’Toole, a Seattle-based litigation consultant. Overall, the book is a very useful resource for the firm’s library, the litigator’s shelf, and the law school classroom. In this brief review, I will call out three points: The book covers the fundamentals, provides a wealth of applied examples, but also paves the way for more advanced advice on jury selection.

Read the rest of the post here.

Thursday, January 25, 2018


Ed Imwinkelried, Professor of Law Emeritus at UC Davis School of Law, has reviewed Jury Selection Handbook. Professor Imwinkelried, among his many other publications, wrote the books on scientific evidence and evidentiary foundations. The following is Professor Imwinkelried’s review of Jury Selection Handbook.

 It was a pleasure reading JURY SELECTION HANDBOOK by Professor Clark and Mr. O'Toole.  I found it to be at once comprehensive, sophisticated, and practical. 

To begin with, it is a thorough treatment of the subject.  The 14 substantive chapters touch on virtually every facet of the jury selection process.  The text reviews the use of jury consultants,  pretrial motions that a litigant can file to enhance the selection process, the interrogation of the panel, and the law governing challenges for cause as well as peremptory strikes.  Chapter 11 even includes a discussion of the case law governing the use of visuals during jury selection.

In addition, the text goes far beyond the rudiments and exposes the reader to advanced techniques.  Throughout the text cautions the litigant to merely attempt to "advance" his or her theory and theme during voir dire and refrain from amateurish overreaching by engaging in objectionable argument.  Chapter 8 illustrates the use of "forced-choice" and "scaled" questions to probe the attitudes of panelists who are reluctant to express their views on controversial topics.  Chapter 13 contains a detailed discussion of the art of "reading" the panelists' nonverbal demeanor, including the caveat that "over the course of socialization, people learn to control their facial expressions more than other aspects of nonverbal communications."

Finally, the text delivers on its subtitle:  "The Nuts and Bolts of Effective Jury Selection."   The text does far more than analyze the theory of the process.  The text addresses such eminently practical subjects as:  conducting your own focus group, the need for courtesy to the lower bench, the optimal phrasing for questions about damages issues, checklists for jury selection, and model motions.  The text has an online supplement with a wealth of useful material.

I do wish that the authors had clarified their use of the expression, "case theme."  They often explain it as "the core idea" of the case.  It would be more precise to tell the reader that the theme should embody the litigant's best substantive justice or common sense argument on the pivotal issue in the case--telling the jury not only what conclusion to reach on the crucial question but, more importantly, why the jury should reach that conclusion. Moreover, although the text discourages the reader from resorting to argument during jury selection, some of the illustrations go well beyond what many judges, especially federal judges, would permit in my experience.

Nevertheless, this is the single best short volume that I have read on jury selection.  It would be a valuable addition to the library of any law student interested in litigation, a neophyte trial attorney, or even a counsel with a middling level of experience.