In courtrooms making tentative steps toward reopening to in-person jury trials, some of the parties have called for increased use of juror questionnaires, ideally filled out ahead of time either by mail or online. This makes...more
What do your potential jurors think about the necessity to follow the law at all times? While it won’t apply in all cases, it will apply to many. Recent protests against police brutality across the country have led to scores...more
7/14/2020
/ Bias ,
Civil Disobedience ,
Defense Strategies ,
Jury Questions ,
Jury Selection ,
Litigation Strategies ,
Protests ,
Questionnaires ,
Trial Practice Guidance ,
Trial Preparation ,
Voir Dire
When jury trials start up again, one way or another, it is going to be a strange and potentially uncomfortable experience for the jurors. If reporting in person, they will be dealing with distancing, masks, temperature...more
This past Friday and Saturday, June 26-27, an unusual exercise was held, exploring both the promise and the perils of a fully online jury trial. The Online Courtroom Project, which I am a part of, conducted an eight-hour...more
Okay, my title is purposefully provocative, but it is not an exaggeration. Based on a recently released, first-of-its-kind, comprehensive study on the effectiveness of voir dire following common practices in civil trials...more
With protests continuing in many major American cities, the civil unrest and violence has had a polarizing effect on the public. While some call for reform and for understanding of what motivates these marches, others call...more
Less than a year ago, in late 2019, the pharmaceutical industry came in dead last in a favorability contest with twenty-five other industries. According to that Gallup Poll, only a little more than a quarter of the population...more
It is taking a while to get back to normal, isn’t it? As states and businesses are starting to re-engage after the coronavirus isolation, courts are taking their time. The chances for routine scheduling, particularly for...more
When Trump associate Roger Stone was sentenced last month for obstruction of Congress and witness tampering, there was some pushback from media, Stone’s legal team, and the President himself targeting the jury’s foreperson, a...more
3/6/2020
/ Bias ,
Criminal Prosecution ,
Defense Strategies ,
Juror ,
Jury Selection ,
Jury Trial ,
Litigation Strategies ,
Questionnaires ,
Social Media ,
Trial Practice Guidance ,
Trial Preparation ,
Trump Administration ,
Voir Dire
Roger Stone has now been sentenced, following conviction on seven counts of obstruction, false statements, and witness tampering. But for the political fixer and his legal team, the fight isn’t over. In a recent motion, they...more
The word “contagious” these days likely evokes fears of the rapidly spreading coronavirus. The concept has long been applied to cognitive biases, as well. Influential attitudes and experiences can also, like a virus, be...more
Sometimes as a defendant, you find yourself in the position where you need to admit to at least some part of the plaintiff’s liability claim. The plaintiff really was injured, and there really was a step that was skipped on...more
Harvey Weinstein goes to trial this week. Out of approximately eighty women accusing the former Hollywood mogul of sexual misconduct over the past few decades, two assault cases will be heard by a jury this week in Manhattan....more
1/6/2020
/ #MeToo ,
Bias ,
Criminal Prosecution ,
Defense Strategies ,
Jury Selection ,
Litigation Strategies ,
Questionnaires ,
Scandals ,
Sexual Assault ,
Sexual Harassment ,
Social Media ,
Trial Practice Guidance ,
Trial Preparation ,
Voir Dire
I remember once sitting in court early into the defense opening statement, and the attorney was busy thanking the jurors, again. Even though they had already heard the spiel from the other side, and from this attorney’s...more
There’s a cartoon that shows a the philosopher, Plato, sitting on the grass of Athens with a modern-day politician (variously, it is Karl Rove or Donald Trump), with the latter character saying to Plato, “But surely you agree...more
On one end of the spectrum, there are specific beliefs jurors might hold on an issue. More generally, then there are attitudes that cover and predict many of those different beliefs. Even more generally, there is the...more
As I’ve written before, it is never safe to trust a potential juror’s own opinion about whether they are biased or not. That is because there has never been much support in the social science for that ability to...more
The simplest way to think about persuasion is as a transaction: You step up and make your best pitch, and then your target audience either accepts it or doesn’t. The conversational way of talking about whether our audience...more
The trial consulting field seems to fly mostly under the radar. As a part of the attorney’s confidential work product, our role in conducting research, preparing witnesses, and helping to advise on jury selection is not...more
6/10/2019
/ Bias ,
Defense Strategies ,
Diversity ,
Jury Consultants ,
Jury Selection ,
Jury Trial ,
Litigation Strategies ,
Peremptory Challenges ,
Trial Practice Guidance ,
Trial Preparation ,
Voir Dire ,
Work-Product Doctrine
Here’s the situation. A large number of strangers are gathered in a formal courtroom — a hushed atmosphere, dark-wood paneling, flags for the state and the U.S., a raised bench with a stern-looking judge. Nothing about that...more
Let’s say you want to know something from your prospective juror: “Do you tend to think that corporations are basically dishonest, or not?” You get a chance to talk to them in court during oral voir dire, or even better, you...more
4/25/2019
/ Defense Strategies ,
Disqualification ,
Jury Selection ,
Jury Trial ,
Litigation Strategies ,
Motion To Strike ,
Peremptory Challenges ,
Questionnaires ,
Trial Practice Guidance ,
Trial Preparation ,
Voir Dire
The title asks a provocative question: “When it comes to jury trials, should you tell a story or stick to the facts?” The piece in the “Your Voice” section of the current ABA Journal is written by Drury Sherrod, a litigation...more
4/15/2019
/ Closing Arguments ,
Defense Strategies ,
Evidence ,
Juror ,
Jury Trial ,
Litigation Strategies ,
Opening Statements ,
Statement of Claim ,
Trial Practice Guidance ,
Trial Preparation ,
Voir Dire
Imagine that you receive a phone call and the voice on the line offers participation in a research project, and also offers pay. Then, the caller walks you through a series of questions to determine your eligibility, and it...more
“Epistimology,” or the question of how we know what we know, seems like an abstract rather than a practical idea. But when it comes to the practical task of assessing and persuading jurors, the epistemological habits of those...more
1/22/2019
/ Best Practices ,
Closing Arguments ,
Cross Examination ,
Defense Strategies ,
Juror ,
Jury Trial ,
Litigation Strategies ,
Opening Statements ,
Trial Practice Guidance ,
Trial Preparation ,
Voir Dire ,
Young Lawyers
Thanks to Batson and associated cases, we now have an uneasy working rule on voir dire in U.S. courtrooms: In exercising peremptory strikes, you can pick and choose on any basis…other than discriminatory ones. Basing strikes...more