Category Archives: Jury Instructions

Plain English Jury Instructions Are Like A Breath of Fresh Air After A Long Trial.

24 Tuesday Mar 2015

Posted by in Jury Instructions, Jury Instructions, Jury Persuasion, Legal Writing, Legalese, Plain Language, Readability, Trial Tips and Techniques

≈ Comments Off on Plain English Jury Instructions Are Like A Breath of Fresh Air After A Long Trial.

Tags

, , , ,

Embrace Plain English Jury Instructions, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://www.persuasivelitigator.com/2015/03/embrace-plain-english-instructions-and-plain-english-persuasion.html

I often play the role of the ‘judge’ during a mock trial. In that capacity, I have the pleasure of reading the legal instructions to the mock jurors just before they deliberate. While I’m droning on about ‘preponderance,’ and ‘proximate cause,’ and making the plaintiff ‘whole,’ I am often met with quizzical looks as the jurors grapple with the language. Some have even made a vain attempt to raise their hands to ask a question. I sometimes wish I could explain, ‘Look, my point is not for you to understand this… it is just to be realistic.’ And, too often, what is realistic is for the instructions to be dense at best and incomprehensible at worst. ’Jury instructions are written by lawyers,’ the American Judicature Society points out, ‘and are often filled with legal language whose meaning is not apparent to those without legal training.’ . . .

Continue reading →

Listen To The Jurors.

29 Friday Aug 2014

Posted by in Criminal Law, Jury Instructions, Jury Persuasion, Jury Selection, Murder, Trial Tips and Techniques, Voir Dire

≈ Comments Off on Listen To The Jurors.

Tags

, , , , , , , , , ,

Listen to Jurors, Especially to Juror #13 From Pamela Smart Trial. by Dr. Ken Broda-Bahm, The Persuasive Litigator

http://tinyurl.com/k9sh7pw

There is a new documentary in current rotation on HBO and it’s one that trial lawyers and other legal junkies will want to watch. Captivated: The Trials of Pamela Smart provides a detailed look at the 1991 trial of the New Hampshire school employee who was tried and convicted for accessory to murder in a case that later become the inspiration for the movie To Die For starring Nicole Kidman. According to prosecutors, Smart seduced one of the students and then recruited him to murder her husband. What separates Captivated from other sensationalized post-trial documentaries is that it takes a very informed and critical look at the media’s influence on trials, and also includes a very unique running commentary from one of the jurors, number 13, who provides her own reactions to the case as it unfolded: real-time comments that she spoke into her own tape recorder after every trial day. The result ends up providing a remarkable view into the continuous reactions of a sitting juror. As O.J. Simpson prosecutor Marcia Clark remarked in a review in Forbes, ‘The insights provided by this articulate, intelligent juror are the most fascinating, and at the same time unsettling, part of the story.’

Fascinating, because what you’re hearing is a conscientious and thoughtful juror attempting to work through the testimony as it is presented. Unsettling, because it is clear that the media along with the force of a popular presumption of guilt also played a role in this case. Commenting on a ‘media circus’ that made her and the other jurors ‘feel like a bug in a glass jar,’ she nonetheless tries to reach a verdict free from that pressure. Whether she and the other jurors succeeded is one of the central questions posed by the documentary, and viewers are able to draw their own conclusions. As I watched it the other night, a few thoughts occurred to me that carry relevance not only for that jury trial, but for most or all jury trials.

Lots and Lots of Jury Instructions.

29 Sunday Jun 2014

Posted by in Jury Instructions, Jury Instructions, Jury Persuasion, Legal Writing, Trial Tips and Techniques

≈ Comments Off on Lots and Lots of Jury Instructions.

Tags

, , , , , , ,

The Language Of Jury Instructions, by Peter Meijes Tiersma, LanguageandLaw.org

http://tinyurl.com/qy9z2rv

Lots of information and examples on jury instructions, including a Manual on Communicating with Juries, links to criminal and civil jury instructions, to plain language jury instructions, to jury instructions for specific states, and more. If you need help writing jury instructions, this would be a good place to start. -CCE

Juries and Social Labeling.

28 Saturday Jun 2014

Posted by in Closing Argument, Jury Instructions, Jury Persuasion, Jury Selection, Opening Argument, Trial Tips and Techniques

≈ Comments Off on Juries and Social Labeling.

Tags

, , , , , ,

“Everyday is a Great Day!” Self-Fulfilling Prophecy and Social Labeling, by Jill D. Schmid Ph.D., Tsongas® Blog

http://tinyurl.com/ljah59y

‘Everyday is a great day!’ That’s what he said, and appeared to believe with every fiber of his body. He was a 20-something, male clerk in an airport hotel’s gift shop. My response to, ‘How are you today?’ paled in comparison. ‘Oh, alright,’ I said as I contemplated what was about to be a very long research day. I didn’t expect to have a philosophical discussion that morning, but after what he said, I couldn’t help but ask his secret.  He looked so content, so convincing, so . . . what’s the word?  Oh yeah, happy.

So I asked, and his answer stuck with me.  He said about five years earlier he found himself in a tough spot; he was making poor choices; he was unhappy and making others around him unhappy. He decided to change his life, and he would do it by simply declaring that every day was special, that ‘everyday is a great day!’ He said from that point on, his attitude changed and he noticed that others’ attitudes also changed.  He found that when he’d tell people that, they smiled and seemed a bit lighter, less stressed. I felt the same – his answer had reminded me that I should be focusing on the positive; that I should be thankful to have a job that allows me to have interesting and challenging conversations nearly every day; that I should be looking forward to interacting with a whole new group of people – people who had important things to say and from whom I would learn a lot. In short, it really was about to be a great day, and I needed to change my attitude.

I was reminded of this encounter during a recent jury selection.  While I typically believe it’s somewhat of a waste of time to elicit ‘promises’ from your potential jurors (i.e., ‘Do you promise that you’ll give my client a fair shake?’ ‘Do you promise that you’ll follow all of the judge’s instructions?’ ‘Do you promise to not let your sympathies influence your decision?”), this attorney took a similar, but improved tack. His questions, and subsequent labeling of the jurors, utilized a well-researched phenomenon called ‘social labeling.’ . . .

Apologizing Even When It’s Not Your Client’s Fault.

30 Sunday Mar 2014

Posted by in Closing Argument, Cross-Examination, Damages, Defense Counsel, Direct Examination, Jury Instructions, Jury Persuasion, Litigation, Making Objections, Opening Argument, Settlement, Trial Tips and Techniques

≈ Comments Off on Apologizing Even When It’s Not Your Client’s Fault.

Tags

, , , , , ,

Show You’re Sorry, Even When You’re Not at Fault, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/ntvjm5r

[A]s we’ve noted before, letting jurors, judges, and opposing parties hear an apology can be effective when you are responsible, or are likely to be found responsible, for at least part of the damage at issue in the case. But what about when you’re not? Does that second kind of “sorry,” meaning “I recognize your loss, but without accepting responsibility for it” create a persuasive advantage as well?

According to some new research, yes, it does. . . .

Jury Nullification Secret Sneaking Out Of The Bag.

16 Sunday Mar 2014

Posted by in Jury Instructions, Jury Persuasion, Jury Selection, Litigation, Trial Tips and Techniques

≈ Comments Off on Jury Nullification Secret Sneaking Out Of The Bag.

Tags

, , , , , , , ,

Treat Nullification as a Known Option, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://perma.cc/HWG4-PKHK

Jury nullification is treated as a deep and dangerous secret. The idea that a jury can decide to follow its own moral guidance instead of following the law, is the legal doctrine that dare not speak its name, at least not anywhere near a courtroom. It’s been used as ammo in the war against the drug war, led to accusations of jury tampering, and even served as the basis for a criminal indictment of a retired professor who made it a practice to hand out pamphlets about nullification in front of courthouses. As stories like these become more well-known, the official secret of jury nullification might be turning into something more like an open secret. Based on the viral success of a recent video by CPG Grey — more than 1.5 million viewers in the first month it’s been up — the knowledge of nullification might be well on the way to becoming more common than ever. . . .

Google Mistrials – A Continuing Problem.

02 Sunday Mar 2014

Posted by in Internet, Juror Impeachment, Jury Instructions, Mistrials, Research, Rule 606, Trial Tips and Techniques, Verdict

≈ Comments Off on Google Mistrials – A Continuing Problem.

Tags

, , , , , , , , , , , ,

Stealing the Verdict: Eastern District of North Carolina Allows Jury Impeachment Regarding Internet Research, by Colin Miller, EvidenceProg Blog

http://tinyurl.com/mkk48a8

“Google mistrials” have been a problem for some time. Here are two examples – one in 2014 and another in 2011 — in which a juror used Internet legal research during the trial and discussed it with fellow jurors, causing a mistrial. -CCE

An emerging problem in the American justice system is jurors conducting internet research about a case, leading to the Google mistrial. And, when such research is not discovered until after trial, as in United States v. LaRoque, 2014 WL 683729 (E.D.N.C. 2012), it leads to jury impeachment.

 Mistrial by Internet A Growing Concern, By Bob Kalinowski (Staff Writer), citizensvoice.com

 http://tinyurl.com/mge3nqk

Legal experts have coined them ‘Google mistrials.’

Curious jurors seeking to conduct their own research surf the Internet about facts presented in court, bringing a halt to important court cases and tainting the outcome.

Sometimes it’s done unwittingly. Other times it’s done against a judge’s specific directions.

Intolerance Is A Door That Swings Both Ways When Presenting Your Case.

17 Monday Feb 2014

Posted by in Appellate Judges, Closing Argument, Cross-Examination, Direct Examination, Federal Judges, Judges, Jury Instructions, Jury Persuasion, Jury Selection, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witness Preparation, Witnesses

≈ Comments Off on Intolerance Is A Door That Swings Both Ways When Presenting Your Case.

Tags

, , , , , , ,

Account for Ideological Intolerance, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://tinyurl.com/kovy8wo

It’s Valentine’s time again. It’s a holiday of love, but in the political world, we’re moving out of yet another debt ceiling standoff and there is no love lost between the two sides of the spectrum. Liberals point to yet another, albeit failed, attempt to hold the country’s full faith and credit hostage, while conservatives point to yet another increase in an already staggering national debt. Neither side can understand the values, arguments, and priorities of the other. And that’s just the debt. Add in social welfare programs, marriage equality, and — as the actual sign from an Arizona gun shop above testifies — gun control, and you’ve got a pretty bitter divide. Polling shows that we are politically more ‘tribal’ than ever before. As we’ve noted in earlier posts, liberals and conservatives appear to use their brains differently when assessing risk, and are resistant to applying basic empathy across the political aisles. . . .

Jury Consultant’s Voir Dire Tips.

10 Monday Feb 2014

Posted by in Jury Instructions, Jury Persuasion, Jury Selection, Peremptory Challenges, Trial Tips and Techniques, Voir Dire

≈ Comments Off on Jury Consultant’s Voir Dire Tips.

Tags

, , , , , , , , , ,

Indirect Questions Reap Most Information in Oral Voir Dire, by Edward P. Schwartz, THE JURY BOX

http://tinyurl.com/lvbx2pz

In reviewing the traffic on my website recently, I was struck by how much more often one particular article was accessed than any other. I used to write a column on trial strategy for Lawyers USA (formerly Lawyers Weekly USA), and this particular article on voir dire strategy from 2006 seems to be very popular, even today. So, in the spirit of giving the public what it wants, here is that article in its entirety.

Framing Your Legal Arguments To Persuade.

11 Saturday Jan 2014

Posted by in Closing Argument, Cross-Examination, Direct Examination, First Amendment, Jury Instructions, Legal Writing, Making Objections, Opening Argument, Trial Tips and Techniques, Voir Dire

≈ Comments Off on Framing Your Legal Arguments To Persuade.

Tags

, , , , , , , ,

Frame It As “Freedom with Consequences,” by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/mvb6qjy

Ducks and Vikings have been prominent recently on the free expression front of the culture wars. The ‘Duck’ would be Duck Dynasty’s reality star Phil Robertson, who’s recent comments on homosexuality and race caused his network, A & E, to briefly suspend him from the show. The ‘Viking’ would be former Minnesota Vikings punter Chris Kluwe, who was released by the team after controversy following an editorial he wrote in favor of marriage equality. While Kluwe lost his job and Robertson kept his, the similarity in the cases is that both were framed in the public sphere as a question of free expression. But it is less the question of whether Robertson and Kluwe have free speech, but whether they have freedom from the employment consequences of that speech.

Better Trial Messages to the Jury.

02 Thursday Jan 2014

Posted by in Closing Argument, Jury Instructions, Opening Argument, Trial Tips and Techniques, Voir Dire

≈ Comments Off on Better Trial Messages to the Jury.

Tags

, , , , , , , ,

Chunk Your Trial Message, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/jvum7kj

Dr. Broda-Bahm provides excellent ideas for litigators on how to “chunk” their trial messages. -CCE

 Give me the bite-sized version, break it down into pieces, and tell it to me step-by-step. The brain loves to segment, and the process known as “chunking” seems to be a central part of how we recognize patterns, manage information, and form new insights. A recent perspective on the process is articulated by Cambridge neuroscientist Daniel Bor in his book, The Ravenous Brain (2012).

[I]t is one thing for the attorney to get that structure, and it is another thing for her listeners to get it just as well. Litigators and other communicators often believe that they’re breaking things down based on a clear, explicit, and meaningful structure, but their audience instead simply experiences a continuous and unbroken flow of information or arguments. Here are a few rules of thumb for making sure you’re actually chunking when you think you’re chunking:

  • It has to be simple (which usually means flat, without substructure, and limited to a manageable number of main points).

  • It has to be explicit (which usually means actually saying something like, “First point,” “Second point,” and “Third point”).

  • It usually should be previewed (“Tell them before you tell them,” unless you having a strategic reason for preserving a surprise).

American Jury System – The Optimal Jury Trial Videos

01 Friday Nov 2013

Posted by in Experts, Jury Instructions, Jury Selection, Trial Tips and Techniques, Voir Dire

≈ Comments Off on American Jury System – The Optimal Jury Trial Videos

Tags

, , , , ,

Favorite Thing: American Jury System – The Optimal Jury Trial Videos, submitted by Susie Macpherson of NJP Litigation Consulting, ASTC Member Trial Consultants from The Jury Expert
http://perma.cc/0Z3TkwVQy6Z

Impressive collection of resources for judges and attorneys. CCE

These videos are a great resource for attorneys and judges who want to investigate any of these topics, or for those who need ‘hands on’ examples to encourage other judges and attorneys to implement new procedures.”

During Trial, Court Should Have Admonished Jury Not to Google Plaintiff’s Lawyer Rather than Ordering Removal of Verdict Successes from Attorney’s Website

01 Friday Nov 2013

Posted by in First Amendment, Jury Instructions, Law Firm Web Sites, Law Office Management, Legal Ethics, Marketing, Trial Tips and Techniques

≈ Comments Off on During Trial, Court Should Have Admonished Jury Not to Google Plaintiff’s Lawyer Rather than Ordering Removal of Verdict Successes from Attorney’s Website

Tags

, , ,

Jurors Might Google Law Firm’s Website, but Judge Can’t Censor It During Trial, by Scott Graham, The Recorder (with hat tip to Allen Mihecoby, CLAS, RP® on LinkedIn)

http://perma.cc/0UvXPVmc3Fg

[T]the decision sets new boundaries in an area of increasing concern for trial attorneys and judges: the balance between attorney free speech rights and potential jury contamination in a networked world.