This is the general sentiment I sometimes hear when one side in an opening statement is talking about the other side’s experts...more
In the early preparation for a jury selection, I will often ask the team if there are plans for a supplemental juror questionnaire. Sometimes the answer is that there aren’t any such plans, and they haven’t really thought of...more
Potential jurors arrive at the courtroom with misinformation that might bear on your case. They could have opinions on scientific validity and reliability that will conflict with what your experts will tell them. They might...more
As a legal category, punitive damages are not very common in U.S. civil trials, being available and awarded in just six percent of cases. But in the broader sense of “punitive,” the motivation to punish or to correct behavior...more
For many defense attorneys, there is a routine to the way that they’ll ask jurors to be fair at the start of their opening statement: There are two sides, you haven’t heard the whole story, please keep an open mind. It almost...more
Based on a recent and extensive report from New York’s Attorney General, the state’s Governor, Andrew Cuomo, is now facing numerous credible claims of a pattern of sexual harassment, with his fellow Democrats, including the...more
The jurors assemble and begin watching the trial — not the actual jurors but the shadow jurors, the ones who are recruited by one side, matched to the real jurors, and offer feedback on the trial as it comes in. They watch...more
One trait of jurors is that, at the start of a case at least, they are not already savvy about the case’s subject matter. So, how do they learn? Through expert testimony. They won’t necessarily just sign-on to an expert’s...more
It is as if the public health groundhog emerged from its den, saw its shadow, and now promises six more months of confusion, polarization, and pandemic fatigue. With the more-transmissible Delta variant of the Coronavirus...more
A ‘Golden Rule’ argument is one that encourages jurors to put themselves in a party’s shoes and think about what they would or wouldn’t have done. It leads to an objection because it encourages the juror to embrace a personal...more
In any challenging communication situation, it is best to combine the visual with the verbal. This is good practice because pictures tend to make things more “truthy,” in the sense that claims that are accompanied by relevant...more
I often hear questions such as, “Do I want Millennials on my jury?” or “Are Boomers likely to be more conservative on damages?” This focus on the attributes of these generational groupings is part of larger fixation on the...more
During the past year or so, when clients have scheduled witness meetings or focus group and mock trial research, we will at some point get to the common question: “So, are we doing this in person or online?” Increasingly, it...more
In the context of voir dire, the tension between social science and court practice is becoming close to intolerable. On the court side, we continue under the assumptions that potential jurors are aware of their biases...more
At the start of the case, a trial judge somberly addressed the jury, letting them know what adjustments were expected of them. The instructions told them they, “must as jurors, take all the decisions you have made, all the...more
The courtroom is a special place, and there are both symbolic and substantive layers to that special status. At the symbolic layer, there are the physical trappings of the courtroom: dark wood, granite, columns, raised...more
As the potential juror sits with the others in the courtroom, the thoughts running through his head might go something like this: “I am being tested on whether I qualify for jury duty…so if that’s what I want, it means giving...more
To jurors, most legal cases are unfamiliar by nature. Cases are about the agreement that jurors weren’t a part of, the product they never used, the employer they never worked for. And, more broadly, the cases often rest on...more
There are two theories fighting it out over what will happen once the pandemic fades. The first, — I’ll call it the “blip theory” — posits that we will simply go back to normal pre-pandemic times, with the lockdown’s...more
Juneteenth is now a federal holiday, and even as many would prefer action on voting rights protection, equal access to education and healthcare, and police reform, the symbol is still important. It highlights both the...more
Now that the coronavirus vaccinations are moving toward the point of critical mass, it might be safe to think back on the early weeks of the vaccines’ roll-out. At that stage, many health officials were emphasizing the limits...more
In complex civil litigation, there’s a lot to manage: a huge wealth of people, events, documents and detail to encourage your fact finders to know and remember. All of them, or nearly all of them, will be important. But some...more
The pandemic came upon us pretty quickly, and many of our essential social institutions, including the legal system, had to change just as quickly. The situation called for action, without a lot of time for reflection. Now,...more
As we enter Pride Month, it’s a good time to reflect on where we are. President Biden recently announced a renewed push for full legal equality for LGBTQ individuals, but that takes place against a background of continuing...more
Critics of the jury system, or simply those who are nervous about taking part, will sometimes characterize a jury’s result as a kind of crap shoot. The feeling is that they’re inconsistent, and subject to the idiosyncrasies...more