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The Researching Paralegal

Category Archives: Jury Persuasion

Testimony Mode: Note the Tradeoff Between Information Density and Juror Sensitivity, by Dr.  Ken Broda-Bahm, Persuasive Litigator™

24 Sunday Oct 2021

Posted by Celia C. Elwell, RP in Jury Persuasion, Trial Tips and Techniques

≈ Comments Off on Testimony Mode: Note the Tradeoff Between Information Density and Juror Sensitivity, by Dr.  Ken Broda-Bahm, Persuasive Litigator™

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Jury Persuasion, Trial Tips & Techniques

No one must tell us that Covid has changed our society in multiple ways that continue to evolve.  Attitudes and attention spans are not the same.

Given these changes, how does a trial lawyer decide what information must be impressed upon a jury and what is the best way to do it? How do you avoid juror boredom? I have seen jurors fall asleep while an attorney questioned a witness using extensive legalese. By the time the lawyer asked the question, he had lost the jury’s attention. He mentally wore them out.

Dr. Broda-Bahm is an experienced litigation consultant. I admit that I am a fan of his blog.  When I saw this post, it reminded me of my experiences watching the jury’s reactions throughout trial. What causes jury information overload? What is a clear and concise way to present complex or unfamiliar legal issues to a jury? What changes should you make to trial strategy to address changes in jury’s attitudes and reactions?

This post addresses those questions. I encourage you to note the “Other Posts on Testimony” at the end of his post, which reference more posts on this topic. – CCE

Testimony Mode: Note the Tradeoff Between Information Density and Juror Sensitivity

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Why The Jury Blamed The Injured Plaintiff.

24 Tuesday Apr 2018

Posted by Celia C. Elwell, RP in Jury Persuasion, Plaintiff's Counsel, Trial Tips and Techniques

≈ Comments Off on Why The Jury Blamed The Injured Plaintiff.

Tags

Jury Persuasion, Paul Luvera, Plaintiff Trial Lawyer Tips

Understanding Why Jurors Want To Blame The Injured Plaintiff, by Paul Luvera, Plaintiff Trial Lawyer Tips

http://plaintifftriallawyertips.com/understanding-why-jurors-want-to-blame-the-injured-plaintiff

There are times when it simply does not make sense that the jury did not sympathize with the plaintiff. Yes, there can be legal reasons for the outcome, but there are certain psychological motives as well. This post does an excellent job of identifying and explaining them. -CCE

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What To Do When You Know the Jury Will Play With the Evidence.

21 Tuesday Nov 2017

Posted by Celia C. Elwell, RP 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.

Tags

Dr. Ken Broda-Bahm, Evidence, Juries, Persuasive Litigator

Expect Jurors to Climb into the Cooler, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2zXlFCX

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

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You Never Know What A Jury Is Going To Do.

29 Saturday Jul 2017

Posted by Celia C. Elwell, RP in Jury Persuasion, Trial Tips and Techniques

≈ Comments Off on You Never Know What A Jury Is Going To Do.

Tags

Dr. Ken Broda-Bahm, Jury Persuasion, Persuasive Litigator Blog

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

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Litigation Tip – Balancing Emotion and Logic.

14 Friday Apr 2017

Posted by Celia C. Elwell, RP in Jury Persuasion, Trial Lawyers, Trial Tips and Techniques, Voir Dire

≈ Comments Off on Litigation Tip – Balancing Emotion and Logic.

Tags

Jury Persuasion, Paul Luvera, Plaintiff Trial Lawyer Tips

Human Nature: “Facts are White Noise & Emotions Rule” & Why We Continue to Believe Objectively False Things, by Paul Luvera, Plaintiff Trial Lawyer Tips

http://bit.ly/2oVw6P5

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

 

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Storytelling Trial Lawyer’s Honey Pot.

24 Friday Mar 2017

Posted by Celia C. Elwell, RP in Jury Persuasion, Storytelling, Trial Lawyers, Trial Tips and Techniques

≈ Comments Off on Storytelling Trial Lawyer’s Honey Pot.

Tags

Storytelling, The Litigation Consulting Report, Tony Klapper, Trial Tips and Techniques

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

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Picking A Jury? Read This First.

29 Tuesday Nov 2016

Posted by Celia C. Elwell, RP in Juror Questionnaires, Jury Persuasion, Jury Selection, Trial Tips and Techniques, Voir Dire

≈ Comments Off on Picking A Jury? Read This First.

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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

 http://bit.ly/2gHoIDn

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.

Continue reading →

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How to Persuade the Jury to Blame One Party Over The Other.

25 Sunday Sep 2016

Posted by Celia C. Elwell, RP 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.

Tags

Opening Statement, Paul Luvera, Plaintiff Trial Lawyer Tips Blog, Trial Tips and Techniques

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.

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Using the “Rule of Three.”

10 Saturday Sep 2016

Posted by Celia C. Elwell, RP in Closing Argument, Jury Persuasion, Legal Writing, Opening Argument, Oral Argument, Storytelling, Trial Tips and Techniques

≈ Comments Off on Using the “Rule of Three.”

Tags

Dr. Ken Broda-Bahm, Legal Writing, Oral Argument, Persuasive Litigator, Rule of Three

Remember the Rule of 3: It’s Simple, Logical, and Effective, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2chpUMD

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.

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What Skills Make a Great Trial Lawyer?

26 Tuesday Jul 2016

Posted by Celia C. Elwell, RP 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.

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Communication Tactics and Jury Persuasion.

03 Sunday Apr 2016

Posted by Celia C. Elwell, RP 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. . . .

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Want The Jury to Pay Attention? Use Good Storytelling Skills.

17 Thursday Mar 2016

Posted by Celia C. Elwell, RP 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.

Tags

John Hyman, Jury Persuasion, Ohio Employer’s Law Blog, Storytelling

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. . . .

Continue reading →

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Understand Group Psychology Patterns for Winning Trial Strategy.

21 Wednesday Oct 2015

Posted by Celia C. Elwell, RP 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

http://tinyurl.com/nugn68v

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.]

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Litigation and The Art of Storytelling.

07 Friday Aug 2015

Posted by Celia C. Elwell, RP in Closing Argument, Cross-Examination, Direct Examination, Jury Persuasion, Opening Argument, Oral Argument, Storytelling, Trial Tips and Techniques

≈ Comments Off on Litigation and The Art of Storytelling.

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Art of Persuasion, Dr. Ken Broda-Bahm, Persuasive Litigator Blog, Storytelling, Trial Tips and Techniques

Tell It: The Top 10 Posts on Story, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://www.persuasivelitigator.com/2015/07/tell-it-the-top-10-posts-on-story.html

The ‘story model’ (Hastie, Penrod & Pennington, 1983) for litigation persuasion is appropriately considered gospel at this point. At the same time, there is an art to it. In most courtrooms, I see litigators who are aware of the need to tell a story, but not necessarily versed in the techniques of storytelling. As I’ve explored from time to time in this blog, beyond laying out the events in temporal sequence, there are some nuances relating to structure, imagery, audience, and point of view. In short, there is a substantial ‘advanced course’ in narrative that effective trial lawyers should study. To make that a little easier, here are our top 10 posts so far on storytelling in trial. . . .

Continue reading →

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Voir Dire and Racism.

03 Friday Jul 2015

Posted by Celia C. Elwell, RP in Jury Persuasion, Jury Selection, Trial Tips and Techniques, Voir Dire

≈ Comments Off on Voir Dire and Racism.

Tags

Dr. Ken Broda-Bahm, Jury Persuasion, Persuasive Litigator Blog, Racism, Trial Tips & Techniques, Voir Dire

Don’t Treat Racism as Just a Belief, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/pkphfl6

As of posting time, seven African-American churches have burned down since the racially motivated murders in Emanuel African Methodist Church in Charleston, South Carolina two weeks ago. One of those fires may have been caused by lightning, but there’s a concern that others may have been caused by a belief – namely, racism toward African-Americans. But that understanding of racism as a conscious and pointed belief can limit our understanding of the full spectrum of the bias. . . .

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Litigator’s Honey Pot – Top 9 Recent Litigation Posts From Ken Lopez.

30 Tuesday Jun 2015

Posted by Celia C. Elwell, RP in Exhibits, Jury Persuasion, Jury Selection, Litigation, Opening Argument, Technology, Timelines, Trial Tips and Techniques, Voir Dire

≈ Comments Off on Litigator’s Honey Pot – Top 9 Recent Litigation Posts From Ken Lopez.

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Ken Lopez, Litigation, Persuasive Trial Strategy, The A2L's Litigation Consulting Report Blog, Trial Tips & Techniques, Voir Dire

Top 9 Litigation Consulting Articles from Q2-2015, posted by Ken Lopez, The A2L’s Litigation Consulting Report Blog

http://tinyurl.com/ob6ma8g

What luck! Ken Lopez kindly has gathered 9 of his recent top posts. There’s a little something for anyone who practices litigation – voir dire and jury selection, trial graphics, persuasive opening arguments, a discussion of the Reptile Trial Strategy, and more. Thank you, Ken! -CCE

It’s been another great quarter of publishing blog articles on A2L’s Litigation Consulting Report Blog. . . . Since we post 2-3 articles every week, I’ve heard from our readers that it is sometimes hard to keep up with the latest articles. To help remedy that and organize the information better, roughly six times a year we publish a mini-retrospective at the end of the quarter, at the end of a year and/or to celebrate blogging milestones.

This quarter, I’m listing the top nine articles from April, May and June of 2015 reverse sorted by the number of times each article was read. This way, this list serves as an excellent reader-curated guide to the very best articles we have published recently. . . .

Continue reading →

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The ABA’s List of the Top 25 Legal Movies.

17 Friday Apr 2015

Posted by Celia C. Elwell, RP in Closing Argument, Direct Examination, Jury Persuasion, Opening Argument, Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on The ABA’s List of the Top 25 Legal Movies.

Tags

ABA Journal, Legal Movies, Legal Profession, Oscar, Richard Brust

The 25 Greatest Legal Movies, by Richard Brust, ABA Journal

http://www.abajournal.com/magazine/article/the_25_greatest_legal_movies

There is a unique group of movies that show the best — and worst — traits and practices by the legal profession. We all have our favorites. Check out the ABA’s list. Are your top choices there? If not, please leave a comment, and share your favorite. -CCE 

What would Hollywood do without lawyers? In a town built on copyrights and cosmetic surgery, lawyers have done far more than pen the small print in studio contracts or post bail for hollow-eyed stars on the way to and from rehab. From the incisive Henry Drummond and the droll Mr. Lincoln to the callow Danny Kaffee and the regal Atticus Finch, lawyers have provided some of Hollywood’s most memorable cinematic heroes and some of its most honorable and thoughtful films.

Earlier this year, the ABA Journal asked 12 prominent lawyers who teach film or are connected to the business to choose what they regard as the best movies ever made about lawyers and the law. We’ve collated their various nominees to produce our jury’s top picks.

Together these films represent 31 Oscar wins and another 85 nominations as befits the best work of some of the greatest actors, writers and directors of their time.

So quiet, please. A rap of the gavel, a pull of the curtain, and ‘Hear ye! Hear ye!’ for the 25 greatest law films ever made. . . .

Continue reading →

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“How To” On Preparing And Using Timelines In Court.

09 Thursday Apr 2015

Posted by Celia C. Elwell, RP in Exhibits, Jury Persuasion, Timelines, Trial Tips and Techniques

≈ Comments Off on “How To” On Preparing And Using Timelines In Court.

Tags

Adam Bloomberg, Jury Persuasion, Litigation Insights Blog, Timelines, Trial Graphics, Trial Tips & Techniques

Timelines: The Jury’s Roadmap to Your Case, by Adam Bloomberg, Director, Visual Communications, Litigation Insights Blog

http://www.litigationinsights.com/trial-graphics/timelines-jury-roadmap/

You and your attorney have worked on this complicated case for months – maybe years. You both know every nuance and the meaning of every exhibit and which witness will say what. To you, it all makes sense but you have had months to learn all about the case.

The jury does not have that luxury – they have to “get it” and absorb all the evidence and testimony from both sides presenting the case. You and your attorney are positive that, if only the jury understands your client’s case, it will return a verdict in your client’s favor.

Some people are more visual than auditory. Would a timeline as part of your trial presentation help the jury understand the details it took you months to piece together? Maybe – read this and then decide whether this tool would indeed work as a jury’s roadmap to navigate the intricacies of your case. -CCE

‘You can’t miss this event!’ your friend exclaims. ’It’s simple. The event is on the left-hand side of the street, two blocks down Lincoln Avenue. You’ll hang a right onto Third, before the gas station. Third is a few miles straight ahead once you exit – when you’re on the freeway, just keep your eyes open for exit 42. Alright, then just continue down Third for a few blocks and hang another right on Lincoln. Don’t forget to grab a bottle of wine, too…. There should be a supermarket near the freeway entrance.’

Confused? Tempted to skip the event and stay home for the evening?

Then consider how a jury must feel when a complicated story gets told in bits and pieces, out of order, and is still expected to find its way to the proper destination (i.e., a verdict for your client). Now include a second attorney who provides a different set of directions altogether!

Timelines, by nature, are often the perfect graphic to solve this problem. They’re the jury’s navigation app. That may be why they’re the most widely used trial graphic of the last 20 years. . . .

Continue reading →

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Hey Jurors — Look This Way!

30 Monday Mar 2015

Posted by Celia C. Elwell, RP in Exhibits, Jury Persuasion, Trial Tips and Techniques

≈ Comments Off on Hey Jurors — Look This Way!

Tags

Douglas Keene, Exhibits, Eye Gaze, Jury Persuasion, Moral Foundations Theory, The Jury Room Blog, Trial Tips & Techniques

Simple Jury Persuasion: “Hey, Look Over Here For A Second!” posted by Douglas Keene, The Jury Room Blog

http://tinyurl.com/p83amyh

This is sort of scary research. We all like to think our views on moral issues are pretty consistent and not easily shaken. That would be incorrect. They are not consistent and they are easily shaken. At least these are the conclusions reached by this research.

We’ve written before about on which side of the courtroom you want to place your exhibits (it’s on the left), but this is far above and beyond that. According to these researchers, you can actually change someone’s mind about an ethical issue by where you have them looking. And, this is the worst part: it takes less than a second! Here is what they did. . . .

Continue reading →

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

24 Tuesday Mar 2015

Posted by Celia C. Elwell, RP 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

Dr. Ken Broda-Bahm, Jury instructions, Persuasive Litigator, Plain English, Trial Tips & Techniques

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.’ . . .

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What’s The Purpose Of The Opening Statement Anyway?

18 Wednesday Mar 2015

Posted by Celia C. Elwell, RP in Jury Persuasion, Opening Argument, Trial Tips and Techniques

≈ Comments Off on What’s The Purpose Of The Opening Statement Anyway?

Tags

Jury Persuasion, Litigation Insights, Opening Statements, Robert Gerchen, Trial Tips & Techniques

How Long Should Opening Statements In a Trial Last? by Robert Gerchen – Senior Consultant, Litigation Insights

http://www.litigationinsights.com/case-strategies/opening-statements-length/

In a recent article, we explored how long closing arguments should be (hint: the shorter the better). Yet almost just as often as we are asked how long a closing should be, we are asked how long an opening statement should last. This answer is a little different. First, though, let’s take a look at the true purpose of an opening statement.

The Purpose of the Opening Statement – It’s More Than a Road Map

‘Tell ‘em what you’re going to tell ‘em.’

‘The opening is a ‘road map’ of what is going to be presented in the case.’

So goes conventional wisdom, which says that the opening isn’t intended to persuade, but rather just to foreshadow – a preview, as it were. Like a trailer to a movie.

Have you ever noticed how we often (read: almost always) determine whether we’re going to like a movie based on viewing the trailer? If the trailer is bland, or evokes no emotion within us, do we want to see the movie? If it’s loaded with action and humor and characters we can already tell we’re going to like, don’t we want to see the movie? How often in a theatre have you turned to a friend after viewing a trailer and whispered, ‘I want to see that,’ or, ‘I think I’ll pass.’ Pretty much every time, right? . . . .

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Jury Persuasion For Mixed Gender Message Delivery.

13 Saturday Dec 2014

Posted by Celia C. Elwell, RP in Closing Argument, Implied Bias, Jury Persuasion, Jury Selection, Opening Argument, Trial Tips and Techniques, Voir Dire

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Douglas Keene, Juries, Jury Communication, The Jury Room Blog, Trial Tips & Techniques

Simple Jury Persuasion: Gender And Message Delivery And Framing, by Douglas Keene, The Jury Room Blog

http://tinyurl.com/osj9h23

Trial lawyers (and others who communicate to persuade) are always looking for a ‘silver bullet’ with which to gild their courtroom presentations. Today’s research offers a glimpse at this holy grail . . . as long as your listeners are either all male or all female. But fear not, there is also something very useful embedded in the results that allows you to improve the receptivity of a mixed gender audience to your message.

Researchers wanted to see if varying message delivery and message framing would make a difference in how the same message was perceived by male and female listeners. In other words, they wondered if you need to communicate differently to a male audience than to a female audience. They examined 2 kinds of message delivery and 2 kinds of message framing in a study focused on being physically fit.

To explore this, they created four (45 seconds long) videos about the importance of regular exercise (a male actor played the part of narrator ‘Dr. Linton,’ a health expert). The messages on the video were delivered in either an eager or a vigilant style and with either a gain or loss framing. (That means there were four versions of the video:  eager delivery style with either a gain message or a loss message or a vigilant style with either a gain message or a loss message.) . . .

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Witness Credibility When Witness Has A Criminal History.

08 Saturday Nov 2014

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, Appellate Law, Colorado Supreme Court, Evidence, Federal Rules of Evidence, Jury Persuasion, Rule 609, Trial Tips and Techniques, Witnesses

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Evidence, EvidenceProf Blog, Felony, Judge Sotomayor, Violence, Witness, Witness Credibility

Credibility Proxies: Violence, by JSK, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/pr3nqtl

Yesterday [November 7, 2014], we saw the Colorado Supreme Court grappling with whether an act of shoplifting is admissible as evidence bearing on a witness’s credibility. In that same opinion, People v. Segovia, the C.S.C. noted that acts of violence have typically been excluded when offered to impeach credibility.

This frequently cited notion, that acts of violence are not particularly relevant to credibility, is worth interrogating further. To do so, I turn to another opinion from the past decade. This one is a frequently cited opinion by then Judge Sotomayor of the Second Circuit, U.S. v. Estrada, 430 F.3d 606. The case was an appeal of the convictions of two men who were found to have conspired to sell cocaine and heroin. At trial, the government called cooperating witnesses. Defense counsel sought to impeach the two witnesses with evidence that between them they had burglary, larceny, felony drug and murder convictions. Acknowledging that F.R.E. 609(a)(1) suggest that felony convictions are presumptively relevant to credibility, the trial court held in camera hearings to probe into the nature of the larceny, felony drug and murder convictions.  It found that they weren’t especially probative of truthfulness. The court therefore ruled that defense counsel could not name the particular felonies committed or ask about the nature of the convictions, but instead could simply elicit the fact of the convictions and the dates.

The Second Circuit disagreed with the blanket prohibition on naming the felonies. It held that unless a conviction fails 403 balancing and is excluded entirely, ‘it is the jury’s function to assess the probative value of a witness’ specific conviction or convictions as part of its overall evaluation of the witness’s credibility.’ Judge Sotomayor wrote that the trial court must examine ‘which of a witness’s crimes have elements relevant to veracity and honesty and which do not’ because while all felonies are not equally probative of credibility ‘many are significantly probative of a witness’ propensity for truthfulness.’

Judge Sotomayor then offered a taste of how the trial court should go about making these determinations. And this is where it gets really interesting. With heavy reliance on earlier authority, she distinguished acts of violence from crimes that “reflect adversely on a person’s integrity.’ Crimes of violence ‘generally have little or no direct bearing on honesty and veracity’ because they result from provocation, carelessness, impatience or combativeness. By contrast, she explained, theft and escape crimes, which don’t fall under 609(a)(2), are nonetheless highly probative of credibility because they involve ‘deliberate and injurious violation of basic standards rather than impulse or anger, and usually . . . some element of deceiving the victim.’ In addition, the gravity and/or depravity involved in the offense should be considered both for their ability to prejudice the jury and because ‘particularly heinous crimes may be high in probative value insofar as they reflect a rejection of social mores.’

Once again, then, rejection of social mores and ‘violation of basic standards” are held up as clear indicators of lack of credibility. Strangely, though, crimes of violence seem to fit those definitions quite well. The very criminalization of such acts suggest that society demands that one maintain self-control and refrain from violence in most circumstances. A violent lack of inhibition or a deliberate indifference to the injuries caused by ones’ actions arguably run contrary to basic standards that glue society together just as fundamentally as the decision to steal from another person.

Even if, instead, lying is linked to the ability to scheme or plan, then this is not much more helpful as a way to distinguish crimes of violence. Certainly, many theft crimes may happen without much thought (shoplifting, for example) and they may be more excusable as the result of thoughtlessness than violence that causes bodily harm to another person. Why is it likely that someone who steals $100 on a whim is more prone to lying than someone who lashes out at another with a beer bottle during a brawl? Why isn’t it equally likely that people who are prone to fly into a violent rage at a perceived slight or recklessly injure others would be careless of the courtroom oath or think nothing of fabricating facts in order to protect themselves? Judge Sotomayor doesn’t answer these questions.

Ironically, even as she offered this fairly detailed explanation of how to weigh felonies under Rule 609(a)(1), Judge Sotomayor illustrated the subjectivity of such line drawing. Coming to the opposite conclusion of the Colorado Supreme Court, she found that it was not error for the district court to conclude that the circumstances of one of the witness’ shoplifting conviction did not ‘involve falsity or deceit such as to fall within the ambit of Rule 609(a)(2).’ Her explanation: stealth and dishonesty are not the same thing.

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Dueling Experts – Which One Will The Jury Believe?

25 Saturday Oct 2014

Posted by Celia C. Elwell, RP in Experts, Jury Persuasion, Trial Tips and Techniques

≈ Comments Off on Dueling Experts – Which One Will The Jury Believe?

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Douglas Keene, Expert Witness, Jury Persuasion, The Jury Room Blog, Trial Tips & Techniques

What Happens When A Juror Agrees [Or Disagrees] With Your Expert Witness?, by Douglas Keene, The Jury Room Blog

http://tinyurl.com/nl3tpto

Mock jurors love to hate dueling experts who give them conflicting information regarding causation, liability, reasonableness, damages, etc. They also don’t appreciate expert witnesses who use jargon or speak so simply that jurors feel ‘talked down to’—but you already know that. What jurors want is to learn what is reliable and useful to resolve the dispute. And attorneys watching mock jurors deliberate often indignantly retort, ‘That is not what the witness said!’—as though the juror simply needed to have the testimony repeated. The research we’re about to describe explains why jurors hear what they hear instead of hearing what the expert actually said. . . .

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Listen To The Jurors.

29 Friday Aug 2014

Posted by Celia C. Elwell, RP in Criminal Law, Jury Instructions, Jury Persuasion, Jury Selection, Murder, Trial Tips and Techniques, Voir Dire

≈ Comments Off on Listen To The Jurors.

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Capivated: The Trials of Pamela Smart, Documentary, HBO, Juror 13, Jurors, Jury Trials, Media Coverage, Murder, Post-Trial, Reasonable Doubt, To Die For

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.

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