One of the most popular strategies used and advocated by many plaintiff’s attorneys across the country is the “broken rule” strategy. The theory is that the most important strategy for any plaintiff is to establish a clear rule up front, and then prove that the defendant broke that rule. Some of the popularity of this theory comes from Reptile, written by David Ball and Don Keenan.
As I’ve written before, there are a variety of significant problems and shortcomings associated with the Reptile strategy, one of which is that the “science” that serves as the foundation for the theory has largely been disproven. However, just like some people still believe vaccinations lead to autism, many attorneys have brushed aside the problems with the science behind the Reptile strategy. So let’s set the science discussion to the side and take a closer look at the “broken rule” strategy. Continue reading →
Recently, I picked a jury in the Pacific Northwest where the judge provided the attorneys for each side limited time for attorney-conducted voir dire (20 minutes each). While the time allocations for voir dire vary from case to case and from judge to judge, most jury selections involve some sort of time limitations along these lines. In other words, in many case, attorneys probably need more time than they actually receive in order to conduct the kind of jury selection that they would prefer. This has important implications because it means that every choice an attorney makes in his or her voir dire is a trade-off. If an attorney spends time focused on one topic, it takes time away from another topic. Consequently, attorneys are put in the position of having to make some tough choices about how to spend their time. Continue reading →
Regardless of the merit of the vast majority of literature out there on jury persuasion, most of it tends to have one critical shortcoming. It focuses on a vast array of persuasive techniques, ranging from the cliché “tell a story” advice to discussions of psychological principles such as primacy or recency, but what it fails to recognize is that persuasion is only one small part of a trial. That may sound absurd, but it’s a subtle distinction that just so happens to be an important one. Continue reading →
Given the way many attorneys talk, I’ve always had this vision of our federal judges being bred in some special ivy league laboratory and raised on a special diet of Plato, Aristotle, Stephen Toulmin, Machiavelli, and others whose works are read only by those who accidentally get invited to dinner parties (i.e. “that guy”). I’ve always envision federal judges as the type who calmly walk away from a vending machine after their bag of chips get stuck in the E4 slot, experiencing no temptation to yell or show man’s physical superiority over machines. Then something amazing happened. A federal judge showed me a childhood picture of him in a Batman costume. Later in the conversation, he told me his wife and him watch So You Think You Can Dance (although, like me, his “watching” consists of sitting in the same room with his wife while it plays on the tele).
Zimmermania is a national debate I’ve worked hard to stay clear of. Our fine mass media pundits have wrapped it so tightly in divisive opinions, leaving no speculative stone unturned in the process, that there is little to add. However, one important takeaway about the general state of American decision-making seems to have gone largely unnoticed. Millions of Americans have readily formed strong opinions about this case, rendering their own personal verdicts, despite having little in the way of actual facts about it.
Some folks may have followed the media coverage of the trial more closely than others, but media coverage is hardly reliable (Really KTVU? You really thought the Asiana Airlines pilot name was Sum Ting Wong?). The fact is, none of the millions of folks who have flooded news media comments sections and message boards or huddled around the office water cooler were at the trial. They did not hear the actual charges that were brought, the jury instructions related to those charges, and the evidence and testimony presented by each side on those charges. But if there’s one thing we Americans can be proud of, it’s that we refuse to let ignorance get in our way. Sure, we could educate ourselves and dig through the complexities of the law and evidence in the Zimmerman trial, but it’s so much easier to read those sexy CNN headlines or watch a three-minute segment on the case. For me, it’s like watching the NBA. Watching a game is not nearly as enjoyable as listening to Charles Barkley rant a bunch of provocative, albeit incoherent at times, commentary over the game. Continue reading →
Check the trending news stories at any moment these days and it becomes clear that Aaron Hernandez’s legal troubles have the makings for the next big courtroom drama. This country loves its courtroom dramas (see OJ, Casey Anthony, Lindsay Lohan, MJ, Zimmermania, etc.). The best candidates have intrigue and controversy. Aaron Hernandez presents both of those. The media coverage has been extensive and has left no potential detail unreported. Unfortunately for Hernandez, this creates significant hurdles to receiving a fair trial.
A wealth of research over the last few decades has shown that pre-trial publicity can create significant bias in a jury pool. I have seen (and worked on) cases where the media reported confessions that never occurred, key evidence that did not exist, and analysis designed to create strong impressions about the case. Maybe it’s irresponsible journalism. Maybe it’s just recognition that the media faces an impossible task of covering complex, detailed issues in the courtroom that simply cannot be encapsulated in a column or a three-minute nightly news segment. Regardless of the reason, the result is often a trial venue where significant portions of the jury have already pre-judged the case, making it extraordinarily difficult for someone like Hernandez to receive a fair trial. Continue reading →