Francis Scott Key Was a Lawyer. Don’t Be Like Him.

Get a piece of paper and a pen, and try the following puzzle. Seriously, try it—it will make this much more fun and you might learn something kind of profound.

Ready? Here is the challenge: Continue reading

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Beware the Stranger With An Agenda (B.T.W. … It’s You)

I have served and observed thousands of lawyers over 23 years, and gotten to know their thinking, strategy, intentions, and performance both preparing for and conducting jury trials. And I have become convinced that there is one barrier at the threshold of real excellence, one impediment to being the very best courtroom lawyer one can be. Continue reading

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Rich on the Celebrity Court radio show

I spoke today with Elizabeth Kelley about the civil lawsuit the heirs of Michael Jackson brought against AEG Live, going into Week 13. I’m at about the 20-minute mark, though the first two guests should not be missed.

http://www.blogtalkradio.com/celebritycourtradio/2013/07/21/celebritycourt

 

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More Lawyer Vocabulary Banishments, by the Torquemada of Text

(This continues the discussion from Wednesday, June 26th.)
Continue reading

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Lawyer Vocabulary Banishments, by the Torquemada of Text

Fish do not think they are wet. If they thought about it at all, they might think you are dry. But just going along their fishy paths, leading their fishy lives, they give no thought to their own wetness. They don’t notice it. It’s just their environment, part of them. Just as you don’t routinely consider your dryness. Swim in something long enough and you won’t even notice it. Until someone points it out.

Counsel, you are probably a fish. Someone had to say it. At least it’s coming from a friend. Continue reading

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On Video Depositions… Because Sometimes Jurors See Clips

Why would a jury guy be talking about video depositions?

Because clips from video depositions are often shown to jurors in trial. Continue reading

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Leveraging Mediations Into Good Settlements

(This is my article published in the June 3, 2013 edition of ‘The Recorder’) Continue reading

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The Ten Commandments of Objections

1. Thou shalt know with thy whole heart that jurors don’t like objections. They want the truth and believe the objector is trying to hide the truth from them. So know that there is a cost for every objection. It is only rarely worth that price. Continue reading

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Supplemental Juror Questionnaires, Part 3: Oh, The Data You’ll Know

The Questions Themselves: Part Social Science, Part Strategy

Often, questionnaires written by lawyers are… well… Look, a lawyer attempting social science based only on intuitive commonsense is like watching social scientists try to practice law with only intuitive commonsense. Which is to say, it’s a little like watching a dog drive a car—we understand the desire to try, and they probably think they’re doing a sufficiently good job, and hey, they are somewhere closer to their destination than before. But still… Continue reading

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Supplemental Juror Questionnaires, Part 2: This Time, It’s Quizzical

I invite you to read the previous post, “Supplemental Juror Questionnaires, Part 1” before reading this. Or not. Your call.  – Rich

The SJQ Introduction: Include a Welcome, Some Thanks, And Always Use Normal Human English

So by way of illustration, permit some delicate dissection of a real questionnaire used last week somewhere in America. Though it is for a criminal case, the lessons apply equally to civil ones. Continue reading

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Supplemental Juror Questionnaires, Part 1

“Everything we see is a shadow cast by that which we do not see.” – Martin Luther King, Jr.

The Importance of Juror Questionnaires

Earlier this week, I came into possession of a supplemental juror questionnaire that is a thing to behold… with thick rubber gloves and tongs. I will share it with you in a bit, but first some background for counsel who don’t use them much. Continue reading

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Voir Dire: Doing Less Gets You More

There’s a cutesy old saying that “god gave you two ears and one mouth, and they should be used in that proportion.” Well, the thing about being the creator of the universe is that you don’t have to pick juries to resolve grievances, so that formula doesn’t work in our field.  Continue reading

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‘The Recorder’ published an article of mine on mediation

It will be in the print edition on Monday, June 3, 2013, and is online now: http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202602241571&In_Practice_When_Jury_Trial_Meets_Mediation&slreturn=20130501101746

I will publish it here when I get permission from American Legal Media.

It’s about leveraging mediations into settlements by using two different methods of introducing jury reality into the discussion and moving the other side closer to your range of settlement. Who wouldn’t want that?

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Voir Dire: Where the Mind Meets the Mouth

Job Number One of any lawyer conducting voir dire is lowering the barriers to communication. What are the barriers that jurors might have to opening up to you?

  • Being in an unfamiliar building and room, but more powerfully, being in an unfamiliar system.
  • Seeing that there is a formal and strange process for everything but having no idea why things are the way they are.
  • Distrust of your and your opposing counsel’s intentions.
  • Preoccupation with their actual lives, the things that really matter to them.
  • Nervousness about having to speak about themselves in front of a group of strangers.
  • There is someone in a suit standing in front of them, asking strange questions.
  • … Or asking invasive questions.
  • … Or asking questions with words and sentence structure that makes it hard to understand quickly.
  • … And if I don’t get it quickly, I am not going to put the work into parsing out your question when it was YOUR job to ask clear questions.

Continue reading

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The Five Do’s and 12,000 Don’ts of Opening Statements

I sat through some opening statements the other day, and can only just now talk about it. Even now, at some points in the story, I feel like pointing to a doll to communicate exactly where and how the two men in the black suits hurt me.

They did some good things – they actually had crafted some themes and frames that might still turn out to be pretty effective. But as an interested professional, I was looking for those things and was willing to sniff through a hill of crap to find the truffles. Fifteen jurors and alternates, I noticed, did not write down a single one of the themes that I thought were good. Does that mean they won’t show up in deliberations in a couple weeks when this jury gets the case? No; jurors might yet absorb those themes during the evidence or in closing arguments, if counsel keeps offering them. But as trial counsel, you have to want those jurors to apply your themes as the filter through which they take in all the evidence from the beginning.  That’s why it pains me so much to see the wasted opportunity.

Continue reading

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More On Jury Selection (Don’t Read That Aloud Too Quickly—Sounds Insulting)

I found a couple more notes from the jury pick I mentioned in the May 5 post. The big themes: in jury selection, keep your language simple and clear, and keep your questions open.

When Lawyers Talk Like Lawyers, It Makes Baby Jesus/Abraham/ Mohammed/Buddha/Vishnu Cry

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Obligatory Jodi Arias Commentary

I have not been following the trial very closely and I don’t really care about it— I feel like this Phoenix production is programming for Nancy Grace’s audience, and I’m really more of a ‘Mad Men’ guy. But I caught a decent chunk of the prosecutor’s closing argument on Friday, and heard/read many viewer comments on his performance. Thus a few comments to you attorneys who do trials.

What struck me the most about the prosecutor’s performance was how sarcastic it was. For a really, really long period of time. Sarcasm does not, in general, persuade jurors. In fact, it is usually disliked by jurors. First of all, sarcasm is generally fueled by anger, and anger does not wear well for very long with most jurors. Second, that anger fuel can be a heady cocktail, and can lead speakers to say things that they are sure are clever… and which the audience just finds douchebaggy, inappropriate attempts at humor, or simply off-topic.

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Voir Dire: 5 Quick Things To Be Less Awful in Jury Selection

I slightly apologize for starting the relaunch of this blog on a slightly bitter note, but I have just come from a jury selection in a civil case and have bandaged my forehead from banging it on the table.  Usually, my favorite Ginsburg is Ruth Bader, but I’m going to dip into Allan on this one:

I saw the best voir dires of my generation destroyed by
badness, wordy cliche opaque,
dragging themselves through the clueless streets at dawn
looking for a frustrated fix.

Continue reading

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