At the voir dire stage of a jury trial, the word “bias” gets used a lot. But do we really know what it means? The courts, in practice at least, hew to a simple meaning: If a potential juror admits to bias, that means they...more
In my last post, I wrote about how the state of Arizona has been a leader in testing options for online trials. That same day, however, Arizona became the first state to eliminate peremptory strikes in criminal and civil...more
Arizona may not be the model when it comes to partisan post-election audits. But when it comes to online or virtual trials, the “Cyber Ninjas” in that context seem to be doing much better. In the Grand Canyon state’s most...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
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
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
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
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
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
A courtroom process is supposed to be formal and solemn. The habits of delivering justice in person, through decorum and civic ritual, are designed to evoke a deference to the rule of law. When conducted remotely using a...more
Wyoming Representative Liz Cheney has just been stripped of her leadership role as the number three Republican in the House. The precipitating incident seems to be that she would not silence her claim that the 2020...more
In the lead-up to trial, a good trial lawyer has many checklists. Some deal with motions to the court. Some deal with disclosure deadlines, some with witness notifications. In this article, I would like to address the broader...more
It has gone from being a surprising observation last spring to a daily truism at this point: Zoom fatigue is real. Now that we are engaged in regular meetings by video web-conferencing, we’ve come to fully grasp the reality...more
In recent days, I’ve been thinking about all of the “QAnon” followers, and how and whether they are reconciling recent events with their belief in Donald Trump’s role in purging the top echelons of politics and society before...more
It was just about a year ago that we all started hearing about a novel virus originating in China. A few months later, as American courts ground to a halt, or moved forward haltingly, it started to create the backlog of cases...more
With the coronavirus pandemic infections and deaths once again surging back to peak levels, it is an odd juxtaposition that people seem to be getting out and about at increasing rates. Still, I’ve often heard after someone...more
In the case of any argument or persuasive appeal you are making, you can ask the question, “Who are you aiming at?” In a jury trial, your answer might be, “The jury, of course.” But who on that jury are you aiming at in...more
We know that perceptions of facts can be filtered by a strong partisan lens. Differing narratives regarding the recent election of Joe Biden and Kamala Harris have brought that into sharp relief. While a majority of Americans...more
Trial lawyers work in words: language that is precise, economical, and influential. Those words are the water that litigators swim in, and for that reason, the absence of words can be a little uncomfortable. That can be an...more
10/29/2020
/ Closing Arguments ,
Cross Examination ,
Defense Strategies ,
Eyewitness Testimony ,
Juror ,
Jury Trial ,
Litigation Strategies ,
Opening Statements ,
Trial Practice Guidance ,
Trial Preparation ,
Voir Dire
The Reptile approach of trying plaintiffs’ cases by framing them in terms of personal safety is no longer a new idea. Plaintiffs’ attorneys are also less likely to treat that approach as a cure-all in every trial. But the...more
We are, of course, still in the midst of the pandemic, and if the question is, “How are people feeling about that?” there is not just one answer. There isn’t even a good answer that can be accurately expressed as an average....more
We tend to think of “bias” as it applies to juries, but courts can have their own deep-seated practices. For example, judges will often prefer voir dire questions that focus on the juror’s own assessment of the influence of a...more
8/12/2020
/ Appeals ,
Bias ,
Boston Bombings ,
Criminal Convictions ,
Criminal Prosecution ,
Death Penalty ,
Defense Strategies ,
Judges ,
Jury Selection ,
Jury Trial ,
Litigation Strategies ,
Peremptory Challenges ,
Reversal ,
Transfer of Venue ,
Trial Practice Guidance ,
Trial Preparation ,
Vacated ,
Voir Dire
As you look out at a panel of potential jurors during voir dire, there are many things you’re likely to wonder about them. Do they have any attitudes toward your client, or people like your client? Are they likely to...more