The idea of something being a “Legal Fiction” is that it is treated as true for the purposes of the law, but it is not literally true. “A corporation is a person” is perhaps one of the best known of these legal fictions, and...more
Rhetorically, a focus on enemies is pretty important. Sometimes they’re invented, and sometimes they’re based on a fundamental truth that is then enhanced and exaggerated. In terms of our concepts and communications, a moral...more
12/10/2018
/ Bias ,
Civil Liability ,
Corporate Structures ,
Defense Strategies ,
Employment Litigation ,
Juror ,
Jury Trial ,
Litigation Strategies ,
Patent Litigation ,
Product Defects ,
Trial Practice Guidance ,
Trial Preparation ,
Voir Dire
A newly-published study about the effects of voir dire in capital cases suggests that social scientists and the courts may need to reconsider a long-held tenet. For at least the past 35 years, the belief has been that jurors...more
Our ability to understand and to talk to each other is increasingly determined by our political leanings. When we all sit down for family Thanksgiving in a couple of months, politics is likely to be off limits at many tables....more
The two terms are often used interchangeably, but “rebuttal” doesn’t mean the same thing as “refutation.” The latter amounts to an attack on the arguments of the other side, and the former means rebuilding your own arguments...more
8/23/2018
/ Best Practices ,
Closing Arguments ,
Cross Examination ,
Defense Strategies ,
Eyewitness Testimony ,
Juror ,
Jury Trial ,
Litigation Strategies ,
Opening Statements ,
Rebuttal ,
Trial Practice Guidance ,
Trial Preparation ,
Voir Dire ,
Young Lawyers
So you are sizing up that potential juror, wondering what she is probably thinking about you, your client, and your case. You think, “African-American woman, lives in the city, works for the government…I’ll bet she considers...more
Canada has an odd system for determining juror bias in some cases. Referred to as a “trier’s process,” it involves the section of two jurors, who do not otherwise go on to become jurors in the case, but are instead charged...more
When your trial-bound case faces complexity, possible juror bias, or potential juror hardships — which is to say, when you have a trial-bound case — you could benefit from a supplemental juror questionnaire, particularly when...more
Lately, the nation has been divided, again, on a critical question of public policy. And, again, that division reveals some stark differences in the ways each side views the facts and understands the values at stake. This...more
How do you spot a racist? Or, to be more on point, in a legal case about racial discrimination, or another case where racial biases would matter to the assessment of the case, the parties, or the witnesses, how do you...more
6/18/2018
/ Bias ,
Defense Strategies ,
Juror ,
Jury Selection ,
Jury Trial ,
Litigation Strategies ,
Peremptory Challenges ,
Race Discrimination ,
Reverse Discrimination ,
Voir Dire ,
Young Lawyers
Lately, I’ve seen increasing reports of people voluntarily separating themselves from the news. Often, this means taking a break from Facebook and its ubiquitous “Newsfeed.” In other cases, however, it involves people...more
Several years ago, I sat in a courtroom in Pennsylvania, assisting the defense in a capital murder jury selection. The process was involved, and potential jurors were interviewed one at a time after completing a comprehensive...more
You’ve heard the expression: “Familiarity breeds contempt.” Maybe there is a relationship between the two, but in the courtroom, and in the practical task of assessing experience and attitudes during voir dire, they are two...more
What a potential juror thinks is, of course, critical to the decision to keep or to strike. But that notion of “what she thinks” means, not just her opinions, but also the broader attitudes and dispositions that lie beneath...more
In all facets of persuasion, and human communication for that matter, we are now used to dealing with a pretty polarized world. Addressing or responding to anything having to do with current events always involves a quick...more
Many have observed the continued decline of the civil jury trial. One reason trial by jury is falling out of favor in civil disputes is that parties and counsel treat it like the ultimate mystery, and this uncertainty makes...more
Persuaders win by convincing decision-makers that their story is more “real” than the alternative. But what if the foundation for that choice, the notion that there is a “real” to aspire to, is eroding? If it is, then...more
Do you think you miss valuable information in voir dire? What about your friends and colleagues who are trial lawyers: Do you think they miss valuable information in voir dire?...more