Sunday, February 18, 2018

ANOTHER POSITIVE REVIEW OF JURY SELECTION HANDBOOK


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

BOOK REVIEW: JURY SELECTION HANDBOOK

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.

Friday, January 19, 2018

TURNING POINTS AT TRIAL: A BOOK REVIEW


Shane Read has done it again; he has written another must-read book for lawyers and law students. Read’s latest book is Turning Points at Trial: Great Lawyers ShareSecrets, Strategies and Skills. This new work is on a par with his prior award winning books Winning at Deposition and Winning at Trial.

Turning Points at Trial delivers exceptional trial strategies and techniques in an effective and highly readable fashion. Shane Read recruited superb trial lawyers to help with his project and set about interviewing them. Each of those talented lawyers was asked to share the trial skills that turned the trial in their client’s favor. Read gathered transcripts from these lawyers and included excerpts from those transcripts in the book to illustrate the particular trial skills under discussion. Also, Read wanted the ideas in the book to stick with the reader, and this determined which cases he included in his book. Read expressed it this way: “Learning trial skills from great lawyers in the context of these fascinating cases makes them easier to learn and more memorable.”

Here is an example of how turning points in trial are discussed in the book. Chapter 8 “Wage Guerrilla Warfare with the Expert” begins with an introduction to the trial lawyer and the case that will be used to illustrate the trial techniques covered in the chapter. The attorney is Robert S. Bennett, whom Read describes as “one of the country’s finest criminal defense attorneys and crisis management lawyers for corporations.” Following a description of Bennett’s background and the prominent clients he has represented, the chapter provides a synopsis of Zapruder v. United States, the case involving an arbitration of the government’s dispute with Zapruder over the appraisal of the film showing the assassination of John F. Kennedy. Next, Read lays out Bennett’s strategies and techniques including: setting up cross-examination in opening statement and cross-examination principles, such as narrowing cross to one or two points – “less is more”, looking for ways to make the expert look weak or not knowledgeable, and how to use the pitch of your voice when asking a question to indicate doubt or demand an agreement. For the rest of the chapter, Read employs excerpts from the transcript of the Zapruder trial to illustrate the strategies and techniques already discussed plus others. Finally, the chapter concludes with a “Chapter Checklist” summarizing: Bennett’s trial strategies; Bennett’s tips for cross-examination; Bennett’s strategies for cross-examination of expert witnesses; Bennett’s insights for hiring expert witnesses; Summary of cross of Macauley (the government’s appraisal expert); Summary of the cross-examination of Staszyn (another government appraisal expert), and Bennett’s advice for closing argument. Read’s utilizes this approach for each chapter and it is both thorough and engaging.


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In addition to covering every aspect of trial work, Turning Points for good measure has chapters on “Depositions” and “Appellate Oral Argument.” Turning Points is Shane Read’s latest engaging masterpiece on trial and appellate advocacy.

Friday, January 12, 2018

JUDICIAL WIT

In a pretrial ruling on a motion for a more definite statement in a complaint, the Honorable Ronald B. Leighton, United States District Judge, Western District of Washington at Tacoma provided gems of judicial wit. In Presidio Group, LLC, vs. GMAC Mortgage, LLC. Judge Leighton's order granting the motion began with William Shakespeare, Hamlet, Act 2, Scene 2, Line 90: “Brevity is the soul of wit.”

The good Judge then went on to point out that “(b)revity is also the soul of a pleading. See Fed. R. Civ. P. 8(a). The Federal Rules envision a “short and plain statement of the claim showing that the pleader is entitled to relief.” He then went on to describe portions of the 465 page Complaint:

"Not before page 30 does the Complaint address the facts alleged. Plaintiff’s allegations continue for 87 pages – including a 37 page pit-stop to quote e-mails. (Compl. 39-76). The Court notes, with some irony, that in his response opposing Defendants’ motions for a more definite statement, the Plaintiff successfully states his allegations in two pages."

Then, in granting the motion, Judge Leighton added a bit of his own poetry:

Plaintiff has a great deal to say
But it seems he skipped Rule 8(a),
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today.

In case you missed it before, here is his order.

Monday, January 8, 2018

DEPOSITIONS: LEARNING FROM AND WITH COURT REPORTERS

Law students taking and defending a deposition with court reporters
To give the law students a complete experience of taking and defending a deposition, we have them take a deposition with court reporters transcribing their work. At Seattle University Law School, we have a three-day intersession course entitled “Essential Lawyering Skills” that focuses on professional communication, and a major component of the course deals with depositions. The law students read about how to conduct depositions in their Pretrial Advocacy text, receive a lecture on depositions and discuss how to take and defend a deposition. Then, they take a deposition  (we have students who are not taking the course act as witnesses for the depositions).

As part of the instruction, Lori Repozo, who is in charge of the Court Reporting program at Green River College, provided the students with practical advice on how lawyers should and shouldn’t take and defend a deposition. For instance, Ms. Repozo discussed the importance of making a proper record and how to do it.

During the presentations Ron Cook did realtime reporting, and the students went online to follow along as Ron transcribed what was said. He also provided the students with advice about working effectively with a court reporter. Mr. Cook is remarkably skilled; he is the 2016 and 2012 National Court Reporting Association (NCRA) gold medalist in realtime Q&A and holds the Registered Diplomate Reporter (RDR) Certification, the NCRA’s most prestigious certification. Also, Ron Cook has been Washington State’s speed champion. 

Later, the students were divided into workshop groups, and Green River students who are learning how to be a court reporters (pictured above), were present in the workshops performing as they would during a real deposition, swearing in the deponent, writing what is said and handling the exhibits. Having the court reporters present brings the deposition experience alive and prepares the law students for what they will face in practice.


Following the course, the reporters prepare transcripts that are delivered to the students. This enables the students to see how they performed – how what they said looks in the transcript. The reporters do not clean up the transcripts, allowing the students to see their filler “um”s and “ok”s.

Wednesday, December 27, 2017

TRIAL ADVOCACY SKILLS CAN BE TAUGHT




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Michael E. Tigar in the preface to his book Examining Witnesses (ABA Litigation Bookshelf) expresses the view that good lawyering can be taught and that trial skills, not luck, will win out. Tigar supports the thesis with this Mark Twain story:

“I believe that good lawyering can be taught. . . . Mark Twain tells the story of a dozen men on trial for running a game of chance, to wit, ‘seven-up’ or ‘old sledge.’ Their lawyer, old Jim Sturgis, brought witnesses to say that it was a game of skill, but deacons and dominies summoned by the prosecutor pronounced it a game of chance. So Sturgis convinced the judge to put four deacons and two dominies on the jury, along with six old gamblers, give them candles and a couple of decks of cards, and ‘just abide by the result.’ As the deliberations went on, various of the ‘chance’ jurors sent word into court to borrow money from their friends. At dawn, the jury returned its unanimous verdict:

“’We, the jury in the case of Commonwealth of Kentucky vs. John Wheeler, et al, have carefully considered the points of the case and tested the merits of the several theories advanced, and do hereby, unanimously decide that the game commonly known as old sledge or seven – up is eminently a game of science and not of chance. In demonstration whereof it is hereby and herein stated, iterated, reiterated, setforth, and made manifest that, during the entire night, the ‘chance’ men never won a game or turned a jack, although both feats were common and frequent to the opposition, and furthermore, in support of this our verdict, we call attention to the significant fact that the ‘chance’ men are all busted, and the ‘science’ men have got the money. It is the deliberate opinion of this jury, that the ‘chance’ theory concerning seven-up is a pernicious doctrine, and calculated to inflict untold suffering and pecuniary loss upon any community that takes stock in it."

(Tigar concludes:) “Good lawyering is not a game of chance, or luck, even though both of these may play a role. Day in and day out, in the tournament of trial, skill wins out.”