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Tag Archives: Trial Tips & Techniques

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™

Tags

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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Avoid Juror Contact And An Ethical Violation.

14 Tuesday Jul 2015

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

≈ Comments Off on Avoid Juror Contact And An Ethical Violation.

Tags

Jurors, Jury Tampering, Legal Ethics, Mistrials, Trial Tips & Techniques

Attorney-Juror Contact: What to Do When Running into a Juror Outside of the Courtroom, by Jessica Baer, M.A., Litigation Insights

http://www.litigationinsights.com/case-strategies/attorney-juror-contact-outside-courtroom/

This post makes an excellent point about avoiding contact or the appearance of tainting the jury. If you should find yourself inadvertently in the presence of juror in a courtroom hallway, bathroom, or elevator, avoid eye contact, look down, and appear deep in thought, as if you are not aware they are there. Then get out of there as quietly and quickly as possible. -CCE

Opening statements had just ended and members of the trial team were beginning to return from their lunch breaks. The attorney we were working with for this shadow jury and I got on the elevator in the parking garage and he began telling me about the upcoming witness testimony. As people (some of whom presumably could be jurors) piled into the elevator on the next floor, the attorney stopped our conversation, looked over at me and whispered, “I’ll take the stairs to get some exercise.” I knew what he meant. . . .

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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. . . .

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Top Ten Checklist For Reviewing Discovery.

02 Saturday May 2015

Posted by Celia C. Elwell, RP in Discovery, Exhibits, Federal Rules of Discovery, Interrogatories, Requests for Admissions, Requests for Production, Trial Tips and Techniques

≈ Comments Off on Top Ten Checklist For Reviewing Discovery.

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Carol Treasure, Discovery Responses, Privilege Log, The Bar Association of San Francisco, Trial Exhibits, Trial Tips & Techniques

Top Ten Things To Do With Discovery Responses, by Carol Treasure, RN, PhD, JD, Cooper & Scully, P.C., The Bar Association of San Francisco

http://www.sfbar.org/basf-bulletin/2012/dec-2012/discovery-responses.aspx

Attorneys expend tremendous effort drafting interrogatories and requests for admissions or documents. Having a checklist will assist you when reviewing the discovery responses. Below is a list of ten things you can do with discovery responses which can save you time and help with case management. . . .

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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. . . .

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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. . . .

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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.

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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?

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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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At Depositions, Ask the Witness To Show, Not Tell.

16 Monday Feb 2015

Posted by Celia C. Elwell, RP in Depositions, Discovery, Evidence, Transcripts, Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on At Depositions, Ask the Witness To Show, Not Tell.

Tags

Court Record, Depositions, Elliott Wilcox, Evidence, Transcripts, Trial Theater©, Trial Tips & Techniques

Impeach Witnesses by Creating an Effective Record at Depositions, by Elliott Wilcox, Trial Theater©

http://trialtheater.com/trial-skills/cross-examination/impeach-witnesses-by-creating-an-effective-record-at-depositions/

The depositions were taking longer than expected, and they were some of the most boring depos I’ve ever attended. As we approached 3 o’clock, I could barely keep my eyes open. Luckily, closing my eyes for a brief moment helped me see what the deposition transcript would look like, and pointed out the difference between talking to the witness and talking to the record. Take a look at two sample questions that were asked:

“This blood here, is that from this general area here, or is that from another area?”

“Is this photograph here a photograph of this area here?”

Huh? Do you have any idea what they’re talking about? Do you know where the blood is? Neither will they when the attorney if she tries to impeach the witness using this deposition during trial. . . .

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Plaintiff Lawyer’s Cross-Examination Outline.

27 Saturday Dec 2014

Posted by Celia C. Elwell, RP in Cross-Examination, Trial Tips and Techniques

≈ Comments Off on Plaintiff Lawyer’s Cross-Examination Outline.

Tags

Cross-Examination, Plaintiff Trial Lawyer Tips Blog, Trial Tips & Techniques

A Cross-Examination Suggestion, by Paul Luvera, Plaintiff Lawyer Tips Blog

http://plaintifftriallawyertips.com/a-cross-examination-suggestion

We all have our own way of preparing for cross-examination and for the style we adopt during the process. I thought I’d reprint a section of part of a cross-examination preparation from a drug company products case to give you an general idea of one of the steps I take in preparing for cross-examination. This would represent part of a whole examination and would be part of the preparation. The actual cross-examination could end up in outline form or it might be a stack of exhibits with tags containing ideas.

I’ve publishing it in its gross form before the additional editing and without explaining the significance of some of the outline as it’s simply an example to illustrate one way to prepare for cross-examination. It would be reviewed and revised and finally end up in a brief outline format. This is how I start the process. . . .

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Top Witness Preparation Tips for Litigators.

24 Wednesday Dec 2014

Posted by Celia C. Elwell, RP in Experts, Litigation, Trial Tips and Techniques, Witnesses

≈ Comments Off on Top Witness Preparation Tips for Litigators.

Tags

Depositions, Expert Witnesses, Ryan Flax, The Litigation Consulting Report, Trial Tips & Techniques, Witness Preparation, Witnesses

The Top 14 Testimony Tips for Litigators and Expert Witnesses, posted by Ryan Flax, The Litigation Consulting Report

http://tinyurl.com/me7elwo

Litigators and their witnesses are confronted with difficult situations during testimony, and it’s nice to have reliable ways out of those sticky situations.

Expert witnesses are engaged to provide their expert insight and opinions supporting their client’s case during testimony and are there to tell the truth to the best of their knowledge when questioned at trial or deposition.

Litigators get paid to ask good and, at times, tough questions to get desired answers from the opposition’s witnesses and to help their own witnesses do their best.

During both courtroom testimony and in depositions there are common situations where an attorney tries to make things difficult for the witness. Below, I identify 14 of these common situations and provide some good strategies, both from my own experience as a litigator and from tips collected from attorneys and expert witnesses. Consider the points below when advising and preparing your witnesses for trial and depositions. . . .

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Famous Trials.

14 Sunday Dec 2014

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

≈ Comments Off on Famous Trials.

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Douglas O. Linder, Famous Trials, Trial Tips & Techniques, Trials, University Of Missouri-Kansas City (UMKC) School Of Law

Famous Trials, by Douglas O. Linder, University Of Missouri-Kansas City (UMKC) School Of Law

http://law2.umkc.edu/faculty/projects/ftrials/ftrials.htm

Every famous trial you can think of beginning with the trial of Socrates in 399 B.C. to the Zimmerman trial (Trayvon Martin shooting) in 2014. -CCE

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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

≈ Comments Off on Jury Persuasion For Mixed Gender Message Delivery.

Tags

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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Cool Tip – How To Re-Number Your Exhibits’ Bates Stamps For Trial.

23 Sunday Nov 2014

Posted by Celia C. Elwell, RP in Adobe Acrobat, Bates Numbers, Exhibits, Legal Technology, Trial Notebooks, Trial Tips and Techniques

≈ Comments Off on Cool Tip – How To Re-Number Your Exhibits’ Bates Stamps For Trial.

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Adobe Acrobat, Bates Numbering, Court Technology and Trial Presentation Blawg, Litigation, Ted Brooks, Trial Exhibits, Trial Tips & Techniques

Trial Tech Tips – TrialDirector Bates Numbering, by Ted Brooks, Court Technology and Trial Presentation Blawg  

http://tinyurl.com/ok53uvl

This tip is one of the best ways to use Adobe Acrobat’s Bates-numbering feature. Not to take away from TrialDirector, but you can do this entirely with Adobe Acrobat. It is fast and easy. If you have not tried it, I strongly encourage it. Mr. Brooks’ post will explain why. -CCE

This article is the first in a series entitled ‘Trial Tech Tips.’ Focused on the crossroads of law and technology, and in no particular order, we will share a collection of proven and tested methods for accomplishing a wide variety of common and/or critical tasks encountered during trial preparation or presentation. We will also try to rank them from one to ten on a ‘geek scale,’ with one being not too technical, and 10 being very technical.

On a geek scale of one to ten, this article would be rated at about an 8.

In litigation, it is generally a good idea to make sure that when a certain document is referred to, it is that exact document, and not another version of the same. In situations where there are more than one, and it can be proven, it can result in an interesting trial.

Bates numbering has been around for some time, and is one good method of making sure that everyone is on the same page – literally. Through the years, inked stamps have been used, printed stickers, and nowadays the method most commonly used adds them via software – generally in the lower right corner of each page. Although the most efficient methods can handle a large volume all in one operation, this can also be done at the individual document level.

There are many reasons for adding a Bates number to your exhibits, and there are many for adding yet another Bates number. For instance, if your exhibits have already been numbered according to document productions, it may be helpful to add another set of numbering tied to trial exhibit numbers. This makes it easier for counsel, judges, witnesses and jurors to quickly get to any given exhibit page. Rather than having some lengthy production-based Bates number (e.g., PLTF000024) that may or may not be followed by its next numerical page (PLTF000025) when used in a trial exhibit, we can simply make reference to the trial exhibit and page number (e.g., 0178-002 would be trial exhibit 178, page 2). . . .[Emphasis added.]

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Should Attorneys, Not Judges, Conduct Voir Dire At Trial?

14 Friday Nov 2014

Posted by Celia C. Elwell, RP in Implied Bias, Juror Impeachment, Jury Selection, Opening Argument, Peremptory Challenges, Trial Tips and Techniques, Voir Dire

≈ Comments Off on Should Attorneys, Not Judges, Conduct Voir Dire At Trial?

Tags

Dr. Ken Broda-Bahm, Juries, Peremptory Challenges, Persuasive Litigator Blog, Trial Tips & Techniques, Voir Dire

Let the Lawyers Ask: Five Reasons for Attorney-Conducted Voir Dire, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/new9t3c

You may think that trial attorneys are the only ones who conduct voir dire at trial. That is not necessarily the case. Not all judges agree, especially in federal court. Dr. Broda-Bahm argues here that the parties’ lawyers should have this role. -CCE

Ever had the experience of asking someone to ask someone else something on your behalf? It’s like a sixth-grader’s attempt to find out if someone likes you. Sometimes you need a little plausible deniability but, in most cases now, it’s easier and more direct to just ask on your own. And that is pretty much what attorneys want in voir dire. It is nice for the judge to explain the procedures and deal with some of the more obvious hardship and cause challenges, but I think it’s safe to say that every trial lawyer wants the chance to ask their own questions in voir dire. Unfortunately, in some states and in most federal courtrooms, attorney-conducted oral voir dire is either limited or nonexistent.

The judges in those courtrooms, however, have discretion, and can allow attorney-conducted oral voir dire if they think the case or the circumstances call for it. So, when attorneys do have an opening to argue for their own chance at the lectern during voir dire, how do they make the case? If the judge is firmly convinced that it’s wasted time or an unwelcome opportunity for lawyers to ask panelists to prejudge the case, then nothing is going to change that judge’s mind. But if judges are on the fence, then a joint request from the parties, along with a few good reasons, might be enough to sway them. This post offers five reasons, along with some supporting research, that could buttress a brief or an oral argument in favor of attorney-conducted oral voldir dire. . . .

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Basic Evidence Presentation Tips For Young Lawyers.

11 Tuesday Nov 2014

Posted by Celia C. Elwell, RP in Admissibility, Authentication, Evidence, Exhibits, Legal Technology, Presentations, Trial Tips and Techniques, Video

≈ Comments Off on Basic Evidence Presentation Tips For Young Lawyers.

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Evidence, Hon. E. Kenneth Wright Jr., Illinois State Bar Association™, Legal Technology, Trial Preparation, Trial Tips & Techniques, Young Lawyers

Letter To Young Lawyers—Basic Tips And Presentation Of Evidence, by Hon. E. Kenneth Wright Jr.,YLD News, Illinois State Bar Association™, Vol. 55, No. 1 (August 2010)

http://tinyurl.com/po9x3hc

Dear Attorney Jane Doe and Attorney John Doe:

As a young lawyer, you are in a place that I left some time ago. However, I have watched you step into jury courtrooms with a level of anticipation and excitement that is refreshing. While a few of you mask it well, I know there is also some anxiety lurking in the background. Don’t worry, because that anxiety strikes even the most seasoned litigators. Now I sit on the bench, and I sometimes wish I could call a time out during the trial to share with you some simple tips that will put you more at ease as you proceed with your case.

Being a member of the judiciary is an honor that comes with extraordinary powers and responsibilities. These powers do not include a coach’s ability to call for substitution of players, so in this note I want to briefly address some basic practical pointers to improve your overall practice as well as touch upon the specific issue of presentation of evidence to a jury. I hope by doing so I give you peace of mind and contribute, in a small way, to your growth as a fine attorney.

Basic Pointers

How quickly you acclimate yourself to courtroom practice depends in large part on you, your learning style, and how many opportunities you have to appear before the court. In the beginning, you may feel overwhelmed by the number of items you must remember, track and recall at a moment’s notice. In your haste, you may overlook a few very basic points that can actually help you. . . .

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Former Convictions Do Not Always Ruin Witness Credibility.

28 Tuesday Oct 2014

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

≈ Comments Off on Former Convictions Do Not Always Ruin Witness Credibility.

Tags

Dr. Ken Broda-Bahm, Persuasive Litigator Blog, Prior Convictions, Trial Tips & Techniques, Witness Credibilitiy, Witness Preparation

Don’t Assume Prior Convictions Kill Credibility, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/lgssphj

The witness is in good shape and the testimony looks to be great. There’s just one little problem in his past: a conviction. Litigators are understandably concerned about any threats to witness credibility, but if that threat comes in the form of a rap sheet, that’s viewed as a very damaging fact, if not a ticking time bomb. The effects of a prior conviction are most often written about in a criminal defense context where the research generally shows that the fact of a prior conviction significantly increases the chances of a current conviction, particularly where the prior conviction is for a similar crime. But it can be a factor for any witness who’s had a prior brush with the law. In civil cases, crimes involving dishonesty can be admitted for the narrow purpose of impeaching a witness’s credibility. A recent study (Stanchi & Bowen, 2014) that focused on a civil trial context looks at the question of whether the damage is as bad as one might suspect. The results? No it isn’t. In a realistic controlled study, the researchers found that prior conviction evidence did not increase the chances for an adverse verdict. Instead, emphasis on the conviction caused mock jurors to frame the trial as more of a zero sum contest on witness credibility — a frame that can end up actually benefiting the convicted witness.  

These results have some implications for attorneys assessing the risks to their witnesses’ credibility. . . . .

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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?

Tags

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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Have The Rules For Jury Selection Changed?

01 Wednesday Oct 2014

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

≈ Comments Off on Have The Rules For Jury Selection Changed?

Tags

Douglas L. Keene Ph.D., Jury Selection, Rita R. Handrich Ph.D., The Jury Expert Blog, Trial Tips & Techniques

Demographic Roulette: What Was Once a Bad Idea Has Gotten Worse, by  Douglas L. Keene, Ph.D. and  Rita R. Handrich, Ph.D. from  Keene Trial Consulting, The Jury Expert Blog

http://tinyurl.com/keqx8ac

‘Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God’s word for that.’ (Clarence Darrow, 1936)

Almost eighty years following Clarence Darrow’s distillation of how religion shapes jury behavior, the belief that demographics could be the holy grail for the selection of jurors persists. It is routine for our clients to comment, in the midst of a mock juror deliberation, “Well, it looks like older women are good for us!” and for the associates to quickly add this to their notes for use in the upcoming voir dire. The lingering hope that demographics could predict a juror’s eventual vote represents a pesky and persistent belief. Too bad it’s hardly ever true. . . .

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Is Evidence of Defendant’s Disability Admissible in Police Brutality Trial?

27 Saturday Sep 2014

Posted by Celia C. Elwell, RP in Admissibility, Americans With Disabilities, Criminal Law, Defense Counsel, Evidence, Excessive Force, Fourth Amendment - Search & Seizure, Governmental Tort Claim Act, Law Enforcement, Police Brutality, Trial Tips and Techniques

≈ Comments Off on Is Evidence of Defendant’s Disability Admissible in Police Brutality Trial?

Tags

Criminal Law, Disability, Evidence, Fourth Amendment, Police Brutality, Reasonable Person Analysis, Trial Tips & Techniques

Disabling Condition: Should Evidence of Defendant’s Disability be Admissible in Assault/Police Brutality Trial?, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/plpuz7s

According to an article in the Lake Geneva News,

‘A man who is accused of attacking a police officer, but counters that he is the victim of police brutality, is set for his second jury trial next Monday.

Daniel White, 42, of rural Elkhorn, faces three felony counts and a misdemeanor related to an incident in which his two pit bulls bit two deputies and he allegedly struck a deputy with his fist and a wood board.

White, who walked in the courthouse with a cane and collects disability checks, contends that the officer knocked down his stockade fence, beat him up and lied to conceal their actions.’

Prior to trial, the prosecution asked the judge to (1) prohibit White’s cane from being in the jury; and (2) to exclude evidence of White’s disability. How should the judge rule?

Well, the judge has already ruled ‘refused to force White to hide his cane during the trial.’ I think this seems like the only correct outcome. First, there is simply the matter of logistics. For instance, a defendant has to stand when the judge enters the courtroom. Given that, it’s difficult to see how the cane could be completely hidden from view. Second, courts have found no problem with defendants being in shackles in the courtroom when such restraint is necessary. Reciprocity would thus seem to require allowing a defendant in need of a cane to be able to use it in plain view of jurors.

The more difficult question is whether the defense should be able to present evidence of White’s disability. Part of this depends on the defense’s theory of the case. Is the claim that White’s disability made him physically unable to commit the crimes alleged in the complaint? If so, you might recall the infamous O.J. Simpson trial in which Richard Walsh was allowed to give testimony that the former running back’s football injuries caused problems with his problems with knees, back, shoulder and hands.

Is the claim self-defense, with White’s claim being that his disability should be part of the reasonable person analysis? If that’s the case, check out this excerpt from Hendrix v. State, 369 S.W.3d 93 (Mo.App. 2012):

‘Although Ransom was decided in the context of a civil claim of self-defense, its analysis of the ‘reasonable person’ standard is relevant to determining whether Hendrix’s medical records were relevant to his claim of self-defense….Hendrix’s medical records, if entered into evidence at trial, would have merely established that he suffered from degenerative joint disease in his knees. As Ransom indicated, a defendant’s ‘proclivities or propensities are irrelevant’ to the issue of whether the defendant acted as a ‘reasonable person.’…Williams was not ineffective for failing to present irrelevant evidence because it would have been inadmissible at trial….

Even if evidence of Hendrix’s disabilities would have been relevant and, therefore, admissible, Hendrix offered no evidence at the motion hearing to demonstrate that, had Williams entered Hendrix’s medical records detailing his degenerative joint disease, the jury would have acquitted Hendrix. The jury heard Paynter’s testimony that Hendrix wore knee braces, and the defense’s closing argument utilized Hendrix’s knee injuries to argue the relative size difference between Hendrix and Paynter. Despite the jury hearing that evidence and argument, it rejected Hendrix’s self-defense theory. Hendrix has not demonstrated that, had the medical records been admitted, there is a reasonable probability that he would have been found not guilty.’

Hendrix seems to stand for the proposition that some evidence of a defendant’s disabilities is admissible but that medical records are not. But, of course, those records were offered for a particular purpose which might well be different from the purpose at White’s trial. -CM

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Philadelphia Legal Opinion on Duty to Preserve Social Media Evidence.

25 Thursday Sep 2014

Posted by Celia C. Elwell, RP in Admissibility, Authentication, Discovery, E-Discovery, Evidence, Litigation Hold, Metadata, Preservation, Social Media

≈ Comments Off on Philadelphia Legal Opinion on Duty to Preserve Social Media Evidence.

Tags

Evidence, Facebook, From the Sidebar Blog, Hayes Hunt, Jeffrey Monhait, Litigation Hold, Rule 3.4, Social media, Trial Tips & Techniques

Lawyer’s Duty to Preserve Social Media Evidence, by Hayes Hunt and Jeffrey Monhait, From the Sidebar Blog

http://tinyurl.com/nn6tmor

Lawyers must take ‘appropriate’ steps to preserve their clients’ potentially relevant and discoverable social media evidence. That is the key take-away from an ethics opinion recently issued by the Philadelphia Bar Association. However, lawyers may advise a client to restrict access to the client’s social media so long as the attorney neither instructs nor permits the client to permanently destroy that information. An attorney may even instruct a client to delete information from the client’s page if the attorney preserves that information, including metadata.

You Can Hide, But You Must Preserve
Changing social media settings to ‘private’ merely restricts who may access a web page. The opposing party can still access relevant and discoverable information through discovery or by issuing a subpoena. The committee concluded that this position satisfied Rule 3.4’s prohibition against altering or destroying evidence. As long as the attorney preserves the complete evidentiary record, including metadata, an attorney may advise a client to restrict access to the client’s social media evidence, or remove social media content entirely.

You ‘Must’ Produce Complete Social Media Content
To comply with discovery requests, a lawyer ‘must’ produce the client’s complete social media content if the attorney is aware of this content’s existence. This duty arises from Rule 4.1, which prohibits attorneys from making ‘a false statement of material fact or law to a third person,’ and Rule 8.4, which prohibits ‘conduct involving dishonesty, fraud, deceit, or misrepresentation.’ A lawyer that purposefully omits portions of social media content, or permits or directs the client to destroy social media content, violates these rules.

Also, a lawyer must take reasonable steps to obtain relevant information from the client when the lawyer ‘reasonably believes’ that the client possesses relevant information, such as photographs, links, or other social media content. Despite being obligated to take reasonable steps, a lawyer need not obtain information that was neither in the client’s possession nor the lawyer’s possession.
Frankly, this isn’t groundbreaking or a new duty, it merely reinforces the need for lawyers to better understand social media for purposes of litigation.

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Trial Tips For Paralegals.

20 Saturday Sep 2014

Posted by Celia C. Elwell, RP in Exhibits, Paralegals/Legal Assistants, Trial Notebooks, Trial Tips and Techniques

≈ Comments Off on Trial Tips For Paralegals.

Tags

Betsy Horn CLA, Paralegals, State Bar of Texas Paralegal Division, Texas Paralegal Journal, Trial Tips & Techniques

A Paralegal’s Guide to Preparing for a Civil Trial, by Betsy Horn, CLA, Texas Paralegal Journal (Summer 1997), ©1997 Legal Assistants Division, State Bar of Texas

http://txpd.org/TPJ/08/horn.html

Do not let the date give you the notion that there’s nothing here worth your attention. Ms. Horn’s article and checklist is invaluable for any paralegal preparing for, or assisting, at trial. Although trial technology and the tools you use may have changed, the common sense and advice in this article is just as true today as in 1997.

Regardless of whether you live in Texas, please don’t ignore the Texas Paralegal Journal. As you can see, it’s been going strong for a long time. I strongly recommend that you look at the Journal’s web page, http://txpd.org/TPJ/75/default.asp. Now that you’ve found it, stay a while. Click on TLJ Online. There is a wealth of information there, just waiting to be plucked. -CCE

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Adverse Witness Direct and Cross-Examination Tips.

16 Tuesday Sep 2014

Posted by Celia C. Elwell, RP in Cross-Examination, Direct Examination, Trial Tips and Techniques, Witnesses

≈ Comments Off on Adverse Witness Direct and Cross-Examination Tips.

Tags

Adverse Witness, Cross-Examination, Direct Examination, Dr. Ken Broda-Bahm, Persuasive Litigator Blog, Trial Tips & Techniques

Flip the Order of Your Adverse Witness Preparation, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

 http://tinyurl.com/mhz8fes

Excellent related articles at the end of Dr. Broda-Bahm’s post. -CCE

 Let’s say that in trial, your witness will be called adverse and will go through the other side’s cross-examination before getting a chance at your direct.[1]  But in your preparation sessions, you should still take them through your direct examination first. That’s what I call the ‘flipped’ order, and in this post, I aim to make the case for this as the better approach. . . .

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When Your Witness Goes Rogue.

14 Sunday Sep 2014

Posted by Celia C. Elwell, RP in Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on When Your Witness Goes Rogue.

Tags

Litigation Insights, Robert Gerchen, Senior Consultant, Trial Testimony, Trial Tips & Techniques, Witness Preparation

Why Didn’t My Witness Do What I Told Him To Do During Witness Preparation?, by Robert Gerchen, Senior Consultant, Litigation Insights

http://tinyurl.com/kvh62we

Boy, have I been there. After spending hours to convince a Vice President of Human Relations that, no, his idea of “explaining” to the case to the jury was a bad idea, of course, that is exactly what he did. It was like a nightmare in slow motion. –CCE

It’s a universal experience. Nearly every attorney who has ever sat down for witness preparation before a deposition, or before trial, to provide clear instructions and guidelines about what to say/not say, or what to do/not do, has at some point found himself asking:

“Why didn’t s/he listen to me?!” . . . .

</link rel=”author”

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