I, like most of you, have probably been having some difficult conversations lately. The most difficult, though, are not just steeped in real ideological differences, but in the ways in which the issues are being framed. For years, there have been a debates and differences of opinion about what “Black Lives Matter” and the “Take a Knee” movement truly mean. The framing of those phrases and movements likely moves someone in one particular direction over another. This past week, another phrase has come about that is doing the same thing: “defund the police.” Continue reading →
For years, I’ve successfully avoided Facetime calls and most video conferences. However, around 9 weeks, 2 days, 13 hours, and 42 minutes ago, that all changed. Not only did all of my work transition to video conferences, but so did my communication with my family and friends. Houseparty and Zoom are my new normal and I have to say, it’s not all bad! Yes, there are all the headaches we’ve known about for years: everyone talking over each other, followed by silence as everyone stops to let others continue; the frozen feed followed by everyone having to repeat what was just said; surprise video “guests”; etc. Through it all, though, people have adapted, and their video “skills” have improved. We’ve also learned that there are some things that do not necessarily need to be conducted “in person.” Just like all of the attorneys out there, our firm is also figuring out what can and cannot be done via videoconference. My colleague Tom wrote about one aspect of this in his blog, “How Does the COVID Pandemic Impact Mock Trials and Focus Groups?”
It is the question on every litigator’s mind: What impact, if any, will the pandemic have on jury decision-making once trials resume? Will there be more goodwill towards businesses because of the economic toll the pandemic has taken? Will perceptions of a widening rich/poor gap perpetuate social inflation and nuclear verdicts? The questions go on and on and it is important to have answers to them. I expect that many organizations will purport to have those answers, but those answers might be misleading or flat-out wrong for one very important reason. Continue reading →
A key milestone in any jury deliberation is the selection of the process for deliberations. At some point early in the deliberations, a process for the discussion is established. Jurors either verbally decide on a process or they simply default to one. By process, I mean the way in which they discuss the issues in order to reach a verdict. There are many different ways they can approach the discussion of the issues, and that process is important because it fundamentally influences the outcome.
For example, if the process begins with everyone going around and venting about the case in an open-ended fashion, that process makes the jurors’ emotions the most important part of the case…or at least establishes those emotions as initially important, which creates momentum for the side that emotions favor in the case. At that point, the emotions start to serve as filters for what evidence and testimony the jurors accept and reject. Conversely, if the jury starts the discussion by focusing on the verdict form questions and the jury instructions, that establishes that the law and things like the burden of proof are most important, which creates momentum in a potentially different direction. These are just two examples of potential starting points in the process, but there are many other factors to the process. Continue reading →
This past Friday, I conducted our first ever all-day mock jury selection workshop in Seattle. Ten attorneys spent the day conducting voir dire and picking a jury to deliberate on the product liability fact pattern we put together ahead of time. Then the mock jurors actually deliberated so we could see how well the attorneys did in voir dire and their use of peremptory strikes. We tried to match everything we could to the actual jury selection process used by our local court. The attorneys had to come up with the right questions to ask, get up and ask them effectively to the large group of mock jurors, and then track that information, along with all of the answers provided during the other attorneys’ voir dire. The mock jurors filled out individual feedback forms and also participated in a group interview where they provided their thoughts about the mock voir dire that had occurred.
It made for a fun, interesting, and insightful day. While the mock jurors had a lot to say, there were some common threads throughout their feedback that attorneys should carefully consider when drafting their own voir dire. Here are three key observations from the day: Continue reading →
When Colin Kaepernick first took a knee in 2016 during the National Anthem to protest police brutality against African-Americans, the controversy was almost immediate. The why he was doing it didn’t matter much then, and it doesn’t seem to matter much now. Instead, the protest became about the flag, the military, or even Donald Trump. One survey in October of 2017 showed that while 57% of the respondents checked that “protesting against police violence” was “one” reason for the protests, respondents also checked other reasons: Donald Trump (26%), not sure (18%), something else (20%) and the flag (14%).
This morning, as I was watching yet another story about the “Flag protest,” I wondered if support and/or understanding of the protest would be different if the label was different. While changing the label might help (labeling it what the protest is really about, e.g., “Police Brutality Protest”), what seems to have happened with this protest is that the focus became the flag and anthem as opposed to police brutality and other injustices and inequalities in the African-American community. In other words, the manner over-shadowed the message – the focus was on the protest itself and not the reason for the protest. Continue reading →
In an article called “The Case of the Vanishing Trial Lawyer,” published in the Boston Globe,a veteran litigator, Edward McCarthy, makes a compelling case for the need for associates to gain more trial experience, while acknowledging that their ability to do so is slim since the number of cases going to trial has dwindled so significantly. “Today,” he writes, “Most trial lawyers can’t learn by doing,” and he goes on to discuss how most cases settle or are handled in arbitration. He writes that “The result is that part of the legal profession’s apprentice system is disappearing.” McCarthy references that the judges of the Massachusetts Superior Court recognized the problem and asked law firms to “let less experience lawyers do something – argue a motion, examine a witness – at trial. ‘Without the chance to speak in a courtroom…future generations of litigators will be less equipped to represent their clients effectively.’” Continue reading →
Confirmation bias refers to when people accept or reject evidence based upon what they want to believe as opposed to basing it on the actual merits of the evidence. In some ways, it is a psychological survival mechanism tied to our beliefs about how the world works. Challenges to these beliefs can cause a great deal of chaos and stress, so our brains are, essentially, pre-programmed to seek out evidence that reinforces those beliefs, while minimizing, explaining away, or outright rejecting evidence that challenges them. In fact, this explains the siloed media we have today where people tend to pick which news channels to watch based upon their political affiliation.
For lawyers, confirmation bias can be a significant problem at trial, especially when the first impressions favor the other party. As Nobel prize-winning psychologist Daniel Kahneman notes, “The sequence in which we observe characteristics of a person is often determined by chance. Sequence matters, however, because the halo effect increases the weight of first impressions, sometimes to the point that subsequent information is mostly wasted.” In other words, first impressions at trial often shape how jurors perceive the subsequent evidence and testimony at trial. A poor first impression of the defendant will likely lead jurors to place greater focus and emphasis on evidence and testimony that reinforces the negative view of the defendant and vice versa. Continue reading →
One of the studies that I like to cite more than just about any is the old 3M study that showed that people remember only about 10% of what they are told three days after it is told to them. Apply this to a trial setting and the implication is that jurors will forget up to 90% of what they heard over the course of a trial by the time they reach the deliberation room. To put it a different way, by the time jurors reach the deliberation room, they are overwhelmed, do not remember the majority of what they just heard, and face the difficult task of having to sort through hundreds to thousands of exhibits, their largely disorganized notes, and a stack of jury instructions that can be difficult to decipher. Continue reading →