Recommended Reading
Here are some books I would urge all trial practitioners to add to their library. Well, no-- don't just add them to the library; read them!
"Practical Jury Dynamics" (2004) and "Jury Thinking" (2005) by Sunwolf, Ph.D. (Published by LexisNexis). Sunwolf is a brilliant thinker about both the individual experience of jurors as well as the collective dynamic of group decisionmaking. Her books are for all practitioners, not just plaintiff nor defense. The books deliver richly on each word in their titles. Strong recommendation for both books.
"Jury Selection Strategy & Science" by Ted A. Donner and Richard Gabriel (West Group, updated periodically). It comes from West's "Trial Practice Series" and it delivers on that: very practice guidey and useful.
"Mastering Voir Dire and Jury Selection" by Jeffrey T. Fredrick, Ph.D. (ABA, 2005). Not the most exhaustive book on the topic, but a good overview on something that makes most lawyers uncomfortable. It also offers excellent advice on supplemental jury questionnaires and hundreds of good voir dire questions broken out by subject.
"Jurywork" by the National Jury Project (West Group). This is a comprehensive practice manual for all phases of jury trial work, including setting favorable conditions for jury selection with the court, through questionnaires and voir dire (plenty of examples of each), through procedure and law of jury selection. It is intended mainly for plaintiffs and for criminal defendants (I affectionately refer to them as the National Jury Commune-- affectionately!), but is widely modifiable for all uses.
"David Ball on Damages" by David Ball (NITA, 2005). Written for the plaintiff practitioner, but I recommend that defense counsel study it, too (you'd study the other team's playbook for any moderately important game, wouldn't you?). Eminently practical, and it borrows heavily from Sunwolf's work as well as the National Jury Project's "Jurywork." Good practical playbook. And other than referring to the title of the book, QUIT USING THE WORD "DAMAGES"! Why? Because that word has no meaning to real people, only to lawyers. Read the book.
"Facts Can't Speak for Themselves" by Eric Oliver (NITA, 2005). Eric is a bright, bright guy who has figured out how to convey his bright, bright thoughts about how people (and therefore jurors) really process information they are told and how they then process it to their conclusion. He offers methods to take advantage of these built-in processes. Throughout my own comments and throughout literature on case presentation, you will see the word "story" countless times. That's because stories are how humans store and organize information... sometimes well, sometimes poorly, and sometimes totally inexplicably. Eric talks about harvesting stories that will help you-- through focus groups and other means. Also good foundation for jury selection. Strong recommendation.
"Legal Blame: How Jurors Think and Talk About Accidents" by Neal Feigenson (American Psychological Assn., 2000). Gives the psychology background in an accessible way and offers good practical suggestions for taking advantage of schemas, presets, and educational psychology.
"Preparing Witnesses" by Daniel I. Small (ABA, 2004). Excellent and practical guide on something many lawyers don't give enough attention or effort. There is so much that jurors impute to or infer about your client and your story based on HOW witnesses perform (as distinct from what they say) that witness preparation should be in the very top tier of things that get the lawyer's attention in the period right before trial. But it kind of gets short shrift as time runs out and the list of things to do stays long. This is a misallocation of time and focus, attorneys. And if you can't do it, bring in an expert to do it (namely us!). This book provides a nice basis for getting to deep stuff that matters and getting beyond the "shine your shoes & be sure to pause after questions so I can object" prep that's going on out there.
"Creating Winning Trial Strategies and Graphics" by G. Christopher Ritter (ABA, 2004). Enormously helpful and interesting book for all lawyers and trial consultants. Visual presentation is a critical part of teaching and persuasion in court, a crucial part of telling your story, and is absolutely universally expected by all jurors under the age of 65 (and increasingly expected among those over 65). The problem is that it's not intuitively obvious what makes an effective graphic as opposed to one that is absolutely jammed with data and covers all facts known to man (the latter being the tendency of lawyers, who are very gifted with linguistic logic). This book will give a good, accessible education to those of us who aren't graphic artists, and will spark creativity of how to present your story better to an audience that craves visual help. Check out the stylized map showing Napoleon's army's advance on Moscow and retreat from it, which graphically shows the size of the army dwindling, and where and when the army was diminishing. Expensive book, but worth it to make you think differently about presenting information for the rest of your career.
"101 Quick Courtroom Tips" by Bob Gerchen (Legal Action Publishing, 2005; www.courtroompresentationtips.com). Bob is an accomplished trial consultant who brings his theater & communications background to the hands of every lawyer in this book. Try a few your next time out.
Any of the Old Textbooks Out There on Damages, Widely Available on ebay.com or alibris.com. The ones I have are "Cases on Damages, Third Edition" by Beale from 1928, and "Sedgwick on the Measure of Damages, Fifth Edition" from 1869. I love these books and they make great props for attorneys: Plaintiff attorneys might point out that the first case in them is usually Delves v. Wyer from 1605, which provided damages for the tort of trespass. Next is usually Hawkins v. Sciet from 1622, which gave damages for the tort of defamation (someone called another guy "a bankrupt"-- scandalizing enough to warrant a 150-pound award in 16freaking22, when that was real money.) Et cetera. This can establish the point that going to court to seek money and justice for harms caused is several centuries old and is a well-established part of a civilization. Likewise, defense attorneys can hold up the book and point out that the rules of how to calculate the right amount of money for harms caused is really old and comes from not making the plaintiff rich, but to make up only for the harm really caused and no more. Et cetera. (Hey, hire us and we'll come up with something snappier for you!)
"Determining Damages: The Psychology of Jury Awards" by Edie Greene and Brian H. Bornstein (American Psychological Assn., 2003). It's maybe the driest of the offerings here, and it would not be the first book I suggest you run out and buy. But it lays bare a lot of myths out there (e.g., jurors who are similar to your client will automatically be more sympathetic to your client because of it) and provides a good framework for the psychological phenomena that jurors go through.
And eventually... Richard Gabriel's and my book on damages for the defense, and my DVD on voir dire.
Got other suggestions for the trial practitioner's library? Please send them to me.
"Practical Jury Dynamics" (2004) and "Jury Thinking" (2005) by Sunwolf, Ph.D. (Published by LexisNexis). Sunwolf is a brilliant thinker about both the individual experience of jurors as well as the collective dynamic of group decisionmaking. Her books are for all practitioners, not just plaintiff nor defense. The books deliver richly on each word in their titles. Strong recommendation for both books.
"Jury Selection Strategy & Science" by Ted A. Donner and Richard Gabriel (West Group, updated periodically). It comes from West's "Trial Practice Series" and it delivers on that: very practice guidey and useful.
"Mastering Voir Dire and Jury Selection" by Jeffrey T. Fredrick, Ph.D. (ABA, 2005). Not the most exhaustive book on the topic, but a good overview on something that makes most lawyers uncomfortable. It also offers excellent advice on supplemental jury questionnaires and hundreds of good voir dire questions broken out by subject.
"Jurywork" by the National Jury Project (West Group). This is a comprehensive practice manual for all phases of jury trial work, including setting favorable conditions for jury selection with the court, through questionnaires and voir dire (plenty of examples of each), through procedure and law of jury selection. It is intended mainly for plaintiffs and for criminal defendants (I affectionately refer to them as the National Jury Commune-- affectionately!), but is widely modifiable for all uses.
"David Ball on Damages" by David Ball (NITA, 2005). Written for the plaintiff practitioner, but I recommend that defense counsel study it, too (you'd study the other team's playbook for any moderately important game, wouldn't you?). Eminently practical, and it borrows heavily from Sunwolf's work as well as the National Jury Project's "Jurywork." Good practical playbook. And other than referring to the title of the book, QUIT USING THE WORD "DAMAGES"! Why? Because that word has no meaning to real people, only to lawyers. Read the book.
"Facts Can't Speak for Themselves" by Eric Oliver (NITA, 2005). Eric is a bright, bright guy who has figured out how to convey his bright, bright thoughts about how people (and therefore jurors) really process information they are told and how they then process it to their conclusion. He offers methods to take advantage of these built-in processes. Throughout my own comments and throughout literature on case presentation, you will see the word "story" countless times. That's because stories are how humans store and organize information... sometimes well, sometimes poorly, and sometimes totally inexplicably. Eric talks about harvesting stories that will help you-- through focus groups and other means. Also good foundation for jury selection. Strong recommendation.
"Legal Blame: How Jurors Think and Talk About Accidents" by Neal Feigenson (American Psychological Assn., 2000). Gives the psychology background in an accessible way and offers good practical suggestions for taking advantage of schemas, presets, and educational psychology.
"Preparing Witnesses" by Daniel I. Small (ABA, 2004). Excellent and practical guide on something many lawyers don't give enough attention or effort. There is so much that jurors impute to or infer about your client and your story based on HOW witnesses perform (as distinct from what they say) that witness preparation should be in the very top tier of things that get the lawyer's attention in the period right before trial. But it kind of gets short shrift as time runs out and the list of things to do stays long. This is a misallocation of time and focus, attorneys. And if you can't do it, bring in an expert to do it (namely us!). This book provides a nice basis for getting to deep stuff that matters and getting beyond the "shine your shoes & be sure to pause after questions so I can object" prep that's going on out there.
"Creating Winning Trial Strategies and Graphics" by G. Christopher Ritter (ABA, 2004). Enormously helpful and interesting book for all lawyers and trial consultants. Visual presentation is a critical part of teaching and persuasion in court, a crucial part of telling your story, and is absolutely universally expected by all jurors under the age of 65 (and increasingly expected among those over 65). The problem is that it's not intuitively obvious what makes an effective graphic as opposed to one that is absolutely jammed with data and covers all facts known to man (the latter being the tendency of lawyers, who are very gifted with linguistic logic). This book will give a good, accessible education to those of us who aren't graphic artists, and will spark creativity of how to present your story better to an audience that craves visual help. Check out the stylized map showing Napoleon's army's advance on Moscow and retreat from it, which graphically shows the size of the army dwindling, and where and when the army was diminishing. Expensive book, but worth it to make you think differently about presenting information for the rest of your career.
"101 Quick Courtroom Tips" by Bob Gerchen (Legal Action Publishing, 2005; www.courtroompresentationtips.com). Bob is an accomplished trial consultant who brings his theater & communications background to the hands of every lawyer in this book. Try a few your next time out.
Any of the Old Textbooks Out There on Damages, Widely Available on ebay.com or alibris.com. The ones I have are "Cases on Damages, Third Edition" by Beale from 1928, and "Sedgwick on the Measure of Damages, Fifth Edition" from 1869. I love these books and they make great props for attorneys: Plaintiff attorneys might point out that the first case in them is usually Delves v. Wyer from 1605, which provided damages for the tort of trespass. Next is usually Hawkins v. Sciet from 1622, which gave damages for the tort of defamation (someone called another guy "a bankrupt"-- scandalizing enough to warrant a 150-pound award in 16freaking22, when that was real money.) Et cetera. This can establish the point that going to court to seek money and justice for harms caused is several centuries old and is a well-established part of a civilization. Likewise, defense attorneys can hold up the book and point out that the rules of how to calculate the right amount of money for harms caused is really old and comes from not making the plaintiff rich, but to make up only for the harm really caused and no more. Et cetera. (Hey, hire us and we'll come up with something snappier for you!)
"Determining Damages: The Psychology of Jury Awards" by Edie Greene and Brian H. Bornstein (American Psychological Assn., 2003). It's maybe the driest of the offerings here, and it would not be the first book I suggest you run out and buy. But it lays bare a lot of myths out there (e.g., jurors who are similar to your client will automatically be more sympathetic to your client because of it) and provides a good framework for the psychological phenomena that jurors go through.
And eventually... Richard Gabriel's and my book on damages for the defense, and my DVD on voir dire.
Got other suggestions for the trial practitioner's library? Please send them to me.
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