19 Monday Mar 2018
Have you ever prepared witnesses or clients for a deposition or trial? If you have, then you know these rules or techniques are the classics. Tried and true. If you haven’t, here is some of the best advice you will ever get. This is a “must bookmark.” -CCE
11 Sunday Mar 2018
Posted in Litigation, Technology, Trial Notebooks, Trial Tips and Techniques
What Does A Paralegal Do At Trial: Six Things Your War Room Must Have, by Christina Roberts, CP, Digital Paralegal Services (with permission from author and website)
This excellent post highlights important steps to prepare for trial. This is especially helpful when your trial is out of town.
I like the emphasis on the trial notebook. Your lead counsel may specify something similar. Regardless, it is your job to make sure they have whatever works for them. Still, this trial notebook is ideal, and is an excellent model to follow.
Some quick words about using technology in the courtroom. Visit the courtroom ahead of time. Write down the location of all electrical outlets. Take a lot of duct tape. Use duct tape to secure all wires and cords.
Ask the judge’s staff whether the judge has a preference or pet peeves. Perhaps the judge has local rules for technology in the courtroom?
If you got to trial often, you likely have your own stories of technology attempts that didn’t work. That could be a post all by itself. Mainly, my best advice to you is that, whatever can go wrong, will go wrong. Anticipate it, and be ready with a back-up plan. -CCE
24 Saturday Feb 2018
Posted in Courtroom Etiquette, Judges, Trial Tips and Techniques
Courtroom Conduct Matters. Yes, Counsel: That Includes You, by Kacy Miller, Persuasion Matters
http://courtroomlogic.com/2018/02/12/courtroom-conduct/
Regardless of who sits at the counsel table or part of the team sitting in the gallery, courtroom conduct matters. Many judges have their own set of courtroom rules. Like all local rules, follow them exactly. These are rules, not suggestions. It is especially important that your client understands the importance of proper court etiquette, as well as any family members or friends who may be seated in the gallery.
I have seen bad behavior by clients and counsel alike. Some clients have trouble controlling themselves. Some attorneys act more like they are in a theater rather than a courtroom. Go to court often enough, and you will quickly see what impresses a judge or jury and what doesn’t. -CCE
21 Tuesday Nov 2017
Posted in Evidence, Exhibits, Jury Persuasion, Trial Tips and Techniques
≈ Comments Off on What To Do When You Know the Jury Will Play With the Evidence.
Expect Jurors to Climb into the Cooler, by Dr. Ken Broda-Bahm, Persuasive Litigator™
Jurors, for the most part, take their job seriously. They want to do the right thing and do a good job. Regardless of whether you parade a cadre of expert witnesses in front of them, if your case hinges on how something works, the jury will want to try it out for themselves.
When you display a key piece of evidence in the courtroom throughout the trial, anticipate that the jurors will want to experiment with it when they adjourn to jury room. Dr. Broda-Bahm explains how to use the jurors’ natural curiosity to your advantage. -CCE
29 Saturday Jul 2017
Posted in Jury Persuasion, Trial Tips and Techniques
≈ Comments Off on You Never Know What A Jury Is Going To Do.
Consider What Drives Resistance to Your Message, by Dr. Ken Broda-Bahm, Persuasive Litigator™
http://www.persuasivelitigator.com/2017/07/consider-what-will-drive-resistance-to-your-message.html
When clients ask whether their case will win at jury trial, the standard answer is that we never know what a jury is going to do.
There are times during trial when it may become obvious the jury is bored or highly engaged. Even then, do you know which way the jury will flop? Well, sometimes. Voir dire has given you some insight, as well as your own research. With the country presently divided, you may think people are easily pigeon-holed.
You’re feeling confident about your opening argument. You may even think you have the jury eating out of your hand. But do you? Really?
Knowing your case well is a two-edged sword. You may believe that the story of your client’s case is so convincing – so right – that it is hard to imagine the jury will not see it just as you do. Are you prepared to address a jury’s resistance to your client’s case? Here are some excellent insights on what makes a jury tick. Please note more posts on this subject at the bottom of Dr. Broda-Brahm’s post. -CCE
22 Saturday Apr 2017
Posted in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Trial Witnesses And Depositions Transcripts.
Use Your Deposition as Your Sword and Shield, by Dr. Ken Broda-Bahm, Persuasive Litigator™
Depositions can be taken months, even years, before a case goes to trial. Even though you may routinely provide every deponent with a copy of the transcript of his or her deposition, does the witness or your client really understand how important it truly is to study it thoroughly? Sometimes I wonder whether they see it more as a bother. Including a copy of this post might help. -CCE
See also Overlearn Your Deposition, by Dr. Ken Broda-Bahm, Persuasive Litigator™ at http://www.persuasivelitigator.com/2017/02/overlearn-your-deposition.html.
14 Friday Apr 2017
Posted in Jury Persuasion, Trial Lawyers, Trial Tips and Techniques, Voir Dire
≈ Comments Off on Litigation Tip – Balancing Emotion and Logic.
Human Nature: “Facts are White Noise & Emotions Rule” & Why We Continue to Believe Objectively False Things, by Paul Luvera, Plaintiff Trial Lawyer Tips
Does your head or your heart make your decisions? Are you sure? While your argument, evidence, and testimony may be perfectly reasoned and logical, how does it rank on a positive or negative on an emotional scale or preconceived beliefs? -CCE
12 Wednesday Apr 2017
Posted in Legal Writing, Persuasive Writing, Plain Language, Trial Tips and Techniques
≈ Comments Off on Use Plain English Rather Than Medical Jargon.
Plain English Helps Explain Medical Issues Clearly, A Case Study, by Dr. Oscar Linares, David Daly, and Gertrude Daly, 36 Mich. B J. (Jan. 2017)
http://www.michbar.org/file/barjournal/article/documents/pdf4article3039.pdf
Professionals, like doctors, often speak using medical jargon. Other doctors understand it, but not necessarily everyone else. This is true for anyone who uses technical language specific to their work. But in a legal matter, communication is critical. A good reason to use plain English, isn’t it? -CCE
24 Friday Mar 2017
Posted in Jury Persuasion, Storytelling, Trial Lawyers, Trial Tips and Techniques
≈ Comments Off on Storytelling Trial Lawyer’s Honey Pot.
The Key Elements of a Good Narrative – at Trial or Anywhere Else, by Tony Klapper, The Litigation Consulting Report, A2L Consulting
http://www.a2lc.com/blog/the-key-elements-of-a-good-narrative-at-trial-or-anywhere-else
Every good trial lawyer is a storyteller. Good storytelling is the same as a good book or movie with a great plot and dialogue. It’s that kind of storytelling that wins trials.
Mr. Klapper has written a wonderful post. At its end, you’ll find a honey pot of links with posts that are a variation on this theme. Sweet. -CCE
26 Sunday Feb 2017
Posted in Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Excellent Advice for Witness Preparation.
Witnesses: Know Your Seven Ways Out of the ‘Yes or No’ Trap, By Dr. Ken Broda-Bahm, Persuasive Litigator
This post caught my eye. I was trained to prepare prospective witnesses to keep their answers brief, preferably to “yes” or “no.” If further explanation was needed or wanted, my lead attorney would ask appropriate questions during direct or cross-examination.
This post takes a different – and better – approach to respond using a variety of answers, regardless of the question asked. Although there may be times when a simple “yes” or “no” answer is the right thing for the witness to say, this post provides excellent advice that is well worth your notice. -CCE
07 Saturday Jan 2017
Posted in Juror Questionnaires, Jury Selection, Trial Tips and Techniques, Voir Dire
≈ Comments Off on Voir Dire and The Internet – The Litigator’s Way of Getting To Know You.
Tags
Dennis Elias, Dr. Ken Broda-Brahm, Internet, Jury Selection, Litigation Strategies Inc., Social media, Voir Dire
Getting Up Close and Personal: Using Social Media in Jury Selection, by Dennis Elias, Litigation Strategy, Inc.
Are you more candid online than in person? Apparently, it’s true, which makes the Internet and social media a boon to litigators. Here’s why, how, and where to draw the ethical line before you go too far. -CCE
29 Tuesday Nov 2016
Posted in Juror Questionnaires, Jury Persuasion, Jury Selection, Trial Tips and Techniques, Voir Dire
≈ Comments Off on Picking A Jury? Read This First.
Tags
Dr. Ken Broda-Brahm, Juror Bias, Juror Questionnaires, Jury Selection, Persuasive Litigator, Voir Dire
Get Better Answers: Top 7 Posts on Supplemental Juror Questionnaires, by Dr. Ken Broda-Brahm, Persuasive Litigator
Well, here’s a treat. Seven posts all in one on jury selection and jury questionnaires. How do you find the right jurors to hear and decide your case? Some people have a natural tendency to tell you whatever you want to hear. They are just trying to be helpful. Some potential jurors simply don’t want to be there, and hope to be dismissed.
You have little time to sort this out. It is time to become an expert in human psychology. –CCE
If I had to pick one trial reform that has the best chance of promoting reliable information in voir dire and in decreasing reliance on demographic biases, it would be the greater use of supplemental juror questionnaires. A well-designed questionnaire allows you to uncover the attitudes that are most relevant to bias in a given case context. Here are seven posts laying out the reasons why.
25 Sunday Sep 2016
Posted in Jury Persuasion, Opening Argument, Plaintiff's Counsel, Storytelling, Trial Tips and Techniques
≈ Comments Off on How to Persuade the Jury to Blame One Party Over The Other.
Plaintiffs Should Always Start By Attacking The Defendant, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog
http://plaintifftriallawyertips.com/plaintiffs-should-always-start-by-attacking-the-defendant
[I]n the 1990’s, trial lawyers Gregory Cusimano and David Wenner investigated the issue. They presented fact patterns to hundreds of focus groups around the country and in that process they observed a consistent pattern: when they began their opening statement by talking about the plaintiff, jurors would blame the plaintiff for what happened. But, if they started with the defendant’s conduct, jurors blamed the defendant and placed much less blame on the plaintiff.
10 Saturday Sep 2016
Posted in Closing Argument, Jury Persuasion, Legal Writing, Opening Argument, Oral Argument, Storytelling, Trial Tips and Techniques
≈ Comments Off on Using the “Rule of Three.”
Remember the Rule of 3: It’s Simple, Logical, and Effective, by Dr. Ken Broda-Bahm, Persuasive Litigator™
So simple, but so persuasive. It is especially useful in oral argument, which is the topic of this post from Dr. Broda-Bahm. -CCE
[W]hen litigators are looking for a way to paint a bit of style and rhetorical effectiveness into their oral arguments, openings, or closings, the rule of three ought to be one of the first items in your tool box. Focusing on — you guessed it — three reasons, this post will explain why.
26 Tuesday Jul 2016
Posted in Jury Persuasion, Trial Lawyers, Trial Tips and Techniques
≈ Comments Off on What Skills Make a Great Trial Lawyer?
Tags
Clarence Darrow, Demonstrative Exhibits, Earl Rogers, Paul Luvera, Plaintiff Trial Lawyer Tips Blog, Trial Lawyers, Trial Tips and Techniques
Lessons from One of America’s Greatest Trial Lawyers – Earl Rogers, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog
http://plaintifftriallawyertips.com/lessons-from-one-of-americas-greatest-trial-lawyers-earl-rogers
Earl Rogers was a famous attorney who died in 1922. He defended 77 murder cases and lost only three. He was one of the greatest trial lawyers in American history. The long running TV series, Perry Mason, was based upon Earl Rogers life. His daughter Della Rogers St. John’s wrote a descriptive book of his trial skills in Final Verdict which is not only enjoyable reading, but educational as well.
We think about Clarence Darrow as a great trial lawyer, but when Darrow was charged with jury bribery in Los Angeles, it was Rogers he selected to be his defense attorney.
04 Monday Jul 2016
Posted in Legal Technology, Litigation, Timelines, Trial Tips and Techniques
≈ Comments Off on Why Creating A Timeline Will Help Your Case.
How to Create a Timeline For Your Case: First Steps to Take and Choices to Make, by Morgan Smith, Cogent Legal Blog
http://cogentlegal.com/blog/2011/08/how-to-create-a-timeline-for-your-case/
In litigation, almost every case will benefit from a timeline that lays out key facts and circumstances in a chronological order. The process of making a timeline can help you, the attorney, organize and strengthen your argument, and the end result is a clear and compelling visual presentation that will help all parties involved better understand your case.
But, which program should you use to create it? This is one question where there is simply no single best answer, and a lot depends on the forum you intend to use the timeline in. This post covers some benefits and drawbacks to different timeline tools and formats so you can determine which to use. To see a variety of timeline samples, please our timeline and portfolio sections of our website.
03 Sunday Apr 2016
Posted in Jury Persuasion, Litigation, Trial Tips and Techniques
≈ Comments Off on Communication Tactics and Jury Persuasion.
Tags
Bill Clinton, David Clark, Donald Trump, Effective Communication, Jury Persuasion, Paul Luvera, Plaintiff Trial Lawyer Tips Blog
What Trial Lawyers Can Learn From Donald Trump, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog
http://plaintifftriallawyertips.com/what-trial-lawyers-can-learn-from-donald-trump
No, I’m not talking about politics. I’m talking about communication tactics employed by Donald Trump.
Omaha Nebraska jury consultant David Clark and I have engaged in an exchange of emails over a long period of time about the general subject of communication and in particular techniques taught at the Spence Trial College. However, since the presidential campaign has become active, our communications have focused upon Donald Trump and his communication style. Not because we are particularly interested in his political positions but because we both recognized that he employed significant communication techniques most people ignored. While most people regard him with intellectual disdain and are appalled by his verbal conduct, we believe there is a substantial amount of unrecognized communication tactics being used either knowingly or not. These are some significant techniques that we all should evaluate. . . .
17 Thursday Mar 2016
Posted in Employment Law, Jury Persuasion, Litigation, Race Discrimination, Trial Tips and Techniques
≈ Comments Off on Want The Jury to Pay Attention? Use Good Storytelling Skills.
25 Million Reasons To Tell A Good Story, by John Hyman, Ohio Employer’s Law Blog
http://www.ohioemployerlawblog.com/2012/06/25-million-reasons-to-tell-good-story.html
Trying an employment case to a jury is an art. You are limited by a jury’s attention span (which, by the way, is getting worse as a result of 1,000 channel cable systems and 140 character tweets) to convey your message as quickly and as simply as possible. Complex legal arguments are out; creative storytelling built around a unified theme is in. . . .
17 Thursday Mar 2016
Posted in Administrative Law, Corporate Law, Criminal Law, Elder Law, Environment Law, Immigration Law, Intellectual Property, International Law, Law Libraries, Legal Ethics, Research, Trial Tips and Techniques
≈ Comments Off on Free Research Guides from PACE Law School Library.
Research Guides, Pace Law School Library
http://libraryguides.law.pace.edu/index.php
Administrative Law, Bar Exam, Copyright and IP Law, Corporate, Business & Securities Law, Criminal Law and Procedure, Environmental and Energy Law, Health and Elder Law, Immigration Law, International and Foreign Law, Land Use Law, and more. Definitely worth a look. -CCE
17 Sunday Jan 2016
Posted in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Witness Preparation for Depositions. How to Say Enough But Not Too Much.
Witness, Don’t Teach” (in Deposition), by Dr. Ken Broda-Bahm, Persuasive Litigator™
One common piece of advice given to fact witnesses during deposition preparation meetings is that it isn’t their role to instruct opposing counsel on everything they ought to know: ‘Witness, Don’t Teach.’ . . .
Earlier this week, I was working with an anesthesiologist who simply could not deaden his impulse to take each question as an invitation to explain, expand, and expound. Applying our advice to ‘just answer the question and stop’ proved difficult once he got into the expository groove of his typical conversation style with colleagues, patients, and family members. That habit is one worth breaking, even if it takes some extra work and focus. . . . To aid in the continuing effort to convince witnesses to take off their teacher’s hats during the deposition, this post shares five reasons why that’s a good idea. . . .
30 Wednesday Dec 2015
Posted in Cross-Examination, Direct Examination, Experts, Litigation, Storytelling, Trial Tips and Techniques
≈ Comments Off on Observations On Gerry Spence’s Witness Examination Technique.
Gerry Spence Witness Examination Excerpts, by Paul Luvera, Plaintiff Trial Lawyer Tips
http://plaintifftriallawyertips.com/gerry-spence-witness-examination-excerpts
In 1985, a man was shot dead on a rural road in Lincoln County, Ore. A teenage boy and his mother were indicted for the crime. Gerry Spence took on both cases for the defense pro bono and faced off against a young prosecutor named Joshua Marquis in the juvenile’s trial; the attorneys did not take a shine to each other. So contentious was the trial that they both ended up before the Oregon State Bar. A special report in the bar matter described their relationship as ‘reveal[ing] a degree of hostility and vituperation unique in our experience.’ The bar charges were dismissed, but the animosity remained. Spence wrote a book about the Oregon trials The Smoking Gun.
I was at the courthouse in Portland during a day or two of this trial. I was able to spend some time with Gerry and his partner during recess. He did an amazing job of obtaining an acquittal for his client. I have part of the transcript of that trial. I recently re-read Gerry’s examination of the polygraph operator from that trial. Gerry’s position was the accuser, wife of the deceased, was actually the one who accidentally shot her own husband and then blamed his client who was a neighbor. He called the polygraph operator to show the accuser had failed the polygraph test. I’m setting out a few illustrations from that transcript for your consideration.
21 Wednesday Oct 2015
Posted in Implied Bias, Jury Persuasion, Jury Selection, Trial Tips and Techniques, Voir Dire
≈ Comments Off on Understand Group Psychology Patterns for Winning Trial Strategy.
Tags
Group Psychology, Jury Persuasion, Jury Selection, Ken Lopez, The Litigation Consulting Report, Voir Dire, Wilfred Bion
Group Psychology, Voir Dire, Jury Selection and Jury Deliberations, by Ken Lopez, The Litigation Consulting Report
Since first being exposed to the group psychology work of Wilfred Bion 15 years ago, I’ve been completely fascinated by it. I think his theories perfectly explain the behavior of every group that I’ve ever encountered. From boards that I sit on to groups on reality TV shows, they all behave in the same predictable ways, especially when placed under pressure. . . . [Emphasis added.]
21 Monday Sep 2015
Posted in Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Should Your Eye Witness Look At The Jury On the Stand? If Not, Where?
Treat Witness Eye Contact As a Three-Way Conversation, by Dr. Ken Broda-Bahm, Persuasive Litigator™
Please note the additional posts at the bottom of the page on witness nonverbal communication. -CCE
The advice is as old as the art of communication: Look at the person you are talking to. And it is good advice. Eye contact makes it easier for audiences to stay engaged and more likely that speakers will focus on their targets. For a witness on the stand during trial testimony, that means ‘Look at the jury.’ But not just the jury. A witness who shuts out counsel and fixes their gaze only on the jury is likely to look a little contrived, or even creepy. So the advice is to look at the attorney when she is asking a question, and then look at the jury when delivering your answer. But that advice can create its own problem. . . .
09 Wednesday Sep 2015
Posted in Jury Selection, Research, Trial Tips and Techniques
≈ Comments Off on How To Investigate Your Jurors’ Presence On Social Media And The Internet.
Tags
ABA Formal Opinion 466, Arianne Fuchsberger M.A., Internet, Juries, Persuasion Litigator™, Persuasion Strategies, Social media
Social Media Searches: Go Beyond the Google, Guest post by Arianne Fuchsberger, M.A., Research Associate, Persuasion Strategies, Persuasion Litigator™
Almost a year ago, the ABA released Formal Opinion 466 clarifying that it is permissible for ‘a lawyer to [passively] review a juror’s or potential juror’s [public] Internet presence.’ Since then, researching seated or potential jurors online has not only become an option, but a necessity. Any additional information on your panel can aid in jury selection and during the actual trial, and lawyers should be doing everything they can to gather information about the individuals who may become the deciders in their case. With the accessibility and abundance of information on the Internet, it would be senseless not to use it.
67 percent of adults use at least one social media website, with 52 percent of adults using two or more. Ranging from blogs to the all-mighty Facebook, there are hundreds of social media websites where you can gain information about a potential juror. Facebook alone has 1.4 billion active users, 25 percent of whom do not use any privacy settings on their account. LinkedIn comes in at 7th with 347 million active users, and the 10th-ranked social network Twitter had over 288 million active monthly users as of March 2015 (statista.com). Beyond social networks, there are also public Internet articles, company websites, public documents, and many more sources of information that can inform you on a potential juror. But with all that information out there, it can be challenging to filter through it and find useful information. I will provide several tips on how to go about locating the full range of an individual’s online presence, and share some guidelines on identifying useful information once you do find the person. . . .
27 Thursday Aug 2015
Posted in Admissibility, Best Evidence Rule, Evidence, Exhibits, Trial Tips and Techniques
≈ Comments Off on Great Illustration and Explanation – What The Best Evidence Rule Is and What It is Not.
Understanding The Best Evidence Rule, by Judge Larry Primeaux, Better Chancery Blog
https://chancery12.wordpress.com/2011/01/12/understanding-the-best-evidence-rule/
I would nominate MRE 1002 for second-most misunderstood rule of evidence (the all-time front-runner, without peer, would be the hearsay rule). . . .
