Jury Nullification Secret Sneaking Out Of The Bag.

16 Sunday Mar 2014

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

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CGP Grey video, Dr. Ken Broda-Bahm, Juries, Jury Trials, Litigation, Nullification, Persuasive Litigator Blog, The Law You Won't Be Told, Trial Tips & Techniques

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. . . .

Like Us, Judges and Juries Get the “Munchies.”

08 Saturday Mar 2014

Posted by Celia C. Elwell, RP in Appellate Judges, Closing Argument, Cross-Examination, Defense Counsel, Direct Examination, Exhibits, Experts, Federal Judges, Judges, Jury Persuasion, Law Clerks, Litigation, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

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Dr. Ken Broda-Bahm, Judges, Juries, Lunch and Snack Breaks, Persuasive Litigator Blog, Persuasive Trial Strategy, Rocket Science Blog, Trial Tips & Techniques, Trials

Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”), by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/lebleml

It comes as no surprise that a hungry person, be it the judge or members of a jury, find it difficult to concentrate and focus on your client’s case. Long stretches of testimony and argument are hard enough to follow, especially if the case is complex with numerous exhibits and witnesses. Regardless how comfortable the chair, sitting for long periods trying to listen carefully to a case is hard work.

There is more than one way to consider your audience at a trial or hearing. Persuasive argument is one. Excellent trial preparation using technology is another. Considerate and well-timed rest and meal breaks are another tool that can be used to your advantage.

The Rocket Science Blog mentioned in this post can be found at http://tinyurl.com/3dg5e8n. – CCE

Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge’s decisions. But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors. Case in point: lunch and snack breaks. Recent research discussed in the excellent Not Exactly Rocket Science blog appears to show that judges’ decisions vary as a direct effect of the proximity of their morning snack or lunch break. In case you are using your morning break or lunch hour to read this post, I’d like to make it worth your while by applying the study findings to the more general issue of your decision-makers’ mental work load and offering some recommendations for anyone who needs to make arguments to a potentially fatigued audience. . . .

Lawyers — First Impressions Stick!

02 Sunday Mar 2014

Posted by Celia C. Elwell, RP in Closing Argument, Cross-Examination, Direct Examination, Exhibits, Experts, Jury Persuasion, Jury Selection, Litigation, Making Objections, Mock Trials, Opening Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

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Bad Impressions, Dr. Ken Broda-Bahm, First Impressions, Mock Trials, Persuasive Litigator Blog, Trial Tips & Techniques, Visual Images, Witnesses

Expect First Impressions to be Carved in Stone, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/org7why

Please note additional links on first impressions, overcoming bad impressions, and using visual images to create a first impression at the bottom of this post at the Persuasive Litigator website. -CCE

We’ve all heard the old saying: You never get a second chance to make a first impression. It is true that when meeting someone new, our brain is quickly putting them into a number of categories. Their background, intelligence, friendliness, attitudes, trustworthiness, and a myriad of other aspects of character are all on their way to being locked into some pretty durable assumptions. In a legal setting, where a juror is reacting to a witness on the stand for example, we might want those credibility determinations to be made over time, informed by the full scope of the testimony. But don’t count on it. . . .

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

17 Monday Feb 2014

Posted by Celia C. Elwell, RP 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

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Conservatives, Dr. Ken Broda-Bahm, Judges, Juries, Liberals, Persuasive Litigator, Politics, Trial Tips and Techniques

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. . . .

Rethink Calling Your Clients “Toothless Cooties.”

25 Saturday Jan 2014

Posted by Celia C. Elwell, RP in Legal Ethics, Litigation, Trial Tips and Techniques

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Case Evaluation, Client Communication, Dr. Ken Broda-Bahm, Legal Ethics, Litigation, Persuasive Litigator Blog, Trial Tips & Techniques

Criticize Clients Carefully, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/mg4bbue

Please note additional articles on client communication and relations at the end of the article. – CCE

There is no doubt that it’s a litigator’s job to realistically assess the case and, when the situation demands it, to deliver bad news to the client. How that assessment is crafted and communicated, however, is where the care comes in.

Framing Your Legal Arguments To Persuade.

11 Saturday Jan 2014

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

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A&E, Chris Kluwe, Dr. Ken Broda-Bahm, Duck Dynasty, Free Speech, Minnesota Vikings, Persuasive Litigator, Phil Robertson, Trial Tips and Techniques

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 Celia C. Elwell, RP in Closing Argument, Jury Instructions, Opening Argument, Trial Tips and Techniques, Voir Dire

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Cambridge, Chunking, Closing Argument, Daniel Bor, Dr. Ken Broda-Bahm, Opening Argument, Persuasive Litigator, Trial Tips and Techniques, Voir Dire

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).

Jury Selection – Pick The Person. Forget About Gender.

20 Friday Dec 2013

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

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Dr. Ken Broda-Bahm, Gender Bias, Jury Selection, Persuasive Litigator, Trial Tips & Techniques

Speak to the Person, Not the Gender, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/nys9zy4

Dr. Broda-Bahm nails it in this post about focusing on the attitudes and experiences of each person on the jury rather than gender. -CCE

We have already, in several posts (here, here, and here) developed the recommendation to not conduct jury selection based on gender or other demographic elements, so I won’t repeat that recommendation here. Instead, I want to focus on the ways advocates should adapt without overcompensating for perceived gender differences. So here are a few suggestions for increasing your odds of speaking and seeing beyond the demographic.