The Mystery of Jury Selection Solved

Ronald H. Clark and Thomas M. O'Toole have written a masterful textbook on how to pick a jury so you can win: Jury Selection Handbook. The authors' expertise is a perfect combination for such a book. O'Toole brings his wisdom as a jury consultant, and Clark shares his extensive teaching and writing skills as a professor at Seattle University Law School.

Most lawyers prepare for trial, but they never prepare for jury selection because they are terrified of the process and believe they can never develop the skills to make a difference in selecting a jury that helps their case. With the publication of this book, that excuse does not work anymore.

The Jury Selection Handbook has everything for the new and experience lawyer to learn how to succeed at jury selection every time. It is clearly written and provides fresh insight with examples that make its strategies memorable. For the busy practitioner, it has a very detailed table of contents that allows you to hone in on a very specific question that needs answering in a hurry. In addition, the book allows for in-depth study and supports its ideas with footnotes to rules and caselaw to give you the authority you need if an opposing lawyer or judge challenges what you do.

Aside from being very thoughtfully and crisply written, the Jury Selection Handbook will persuade you to disregard the conventional wisdom that you pick jurors that favor your side. Instead, the book argues convincingly that your goal should be to find the jurors that are against you so you can prevent them from being on the jury. Why? If you follow the conventional wisdom and find jurors that will help you through your questions and their answers, the only thing you have done is identify the jurors that the other side will strike. In short, you are doing the work for your opponent.

Instead, as Clark and O'Toole discuss in Chapter Seven, your goal is to get as many negative responses from the jurors as possible so you can prevent them from being on the jury. The authors give you loads of practical tips on how to create such a discussion. As the book points out with ringing clarity, there are two chances for jurors to tell you something bad about your case: in jury selection when you can do something about it or with their verdict.

This book is a must read for new and experienced litigators.

 

 


Two Myths about Cross for Depos and Trial

In a previous blog, I discussed the greatest myth of cross-examination. It is the myth created by the old Perry Mason television show and continued by Hollywood that causes young lawyers to feel needlessly petrified of cross-examination whether it is at trial or a deposition. The lawyers’ fear comes from the mistaken belief that an attorney is supposed to achieve success on cross-examination like that moment in A Few Good Men.

In that movie, Tom Cruise plays an inexperienced military defense attorney, Lt. Daniel Kaffee, who is cross-examining Colonel Jessup, played by Jack Nicholson. The climax of the movie is the cross-examination of Jessup. Kaffee decides to do the unthinkable for a defense attorney in military courts—accuse an officer of lying without any proof to back it up. Despite the lack of proof, Kaffee’s instincts tell him that the power of his questions will force Jessup to admit that he gave an unlawful order (a military crime). However, Kaffee knows that if he fails, he will be punished for falsely accusing an officer. In this famous scene, Kaffee builds his cross-examination and hammers the ultimate question: “I want to know the truth!” Jessup responds, “You can’t handle the truth,” and he arrogantly begins to tell Kaffee why he can’t handle the truth, at the same time confessing to giving an unlawful order. You can see the movie clip here.

However, the reality is, that the confessions we see in the movies and on TV almost never occur in the courtroom.

Another myth is that the witness has the power. At first glance, cross-examination seems difficult because the attorney does not know what the witness is going to say, so it would appear the witness has all the leverage. However, the reality is that you get to choose which topics to question the witness on, and then which questions to ask. You are in control. You can question the witness on topics that you have the leverage, not him. Nonetheless, attorneys are concerned that even if they ask the right questions, the witness will give an answer that is detrimental to the case. But, it does not matter what the witness says; it is whether or not the witness will be believed. With an effective cross-examination, the witness will not be believed.

The third myth is advanced by Thomas A. Mauet in Trial Techniques. He instructs that you “ask only enough questions on cross-examination to establish the points you intend to make during your closing argument.” Under this theory, “you avoid asking the last question that explicitly drives home your point. Instead, your cross will merely suggest the point. During the closing argument you will rhetorically pose that last question and answer it the way you want it answered, when the witness is not around to give you a bad answer.”

The problem with this instruction is that it ignores the fact that any ultimate question you intentionally fail to ask for fear of getting a bad answer will be asked by opposing counsel on redirect examination (or at the end of the depo). Remember, it is not what the witness says, but whether or not he will be believed. Maintain your integrity with the jury. Ask the ultimate question the jury wants you to ask the witness. The witness’ answer is irrelevant. Indeed, his “bad” answer (which is a lie) actually helps you even more because now he has destroyed his credibility by lying directly to the jury (or if it is at a deposition, when you use it at trial.)


A Secret to Winning Your Next Oral Argument

It would be naive to think that juries have the final say. Win or lose, an appeal to a higher court is in the back of every trial lawyer’s mind. If the issue on appeal is a close one, the appellate court grants the attorneys a hearing to argue their case before a panel of appellate judges. This is known as oral argument. Whether you won or lost at trial, the appellate oral argument is the ultimate turning point that will decide your fate.

I recently interviewed three brilliant appellate lawyers who share their insights and strategies that make their oral arguments successful (Turning Points at Trial). Let me share with you my favorite tip from Bryan Stevenson who is internationally known for his advocacy of death row inmates, juveniles in prison, and civil rights. He shared with me the strategies he used in two of his Supreme Court arguments.

Do you know what Stevenson takes to the podium? It is a legal pad. But it is not full of notes. While most lawyers take a notebook full of cases and record transcripts, Stevenson takes a blank legal pad so that he can write down a question from a justice if the pace gets too fast so that he makes sure that he answers it. He explains as follows.

An unforgiveable mistake lawyers make at oral argument is that they fail to listen. Stevenson advises, “you can go in to an appellate court and give a beautiful speech about why you think you win,” instead of listening to the questions the court needs answered. If what the court is concerned about is some really peculiar, esoteric question about something procedural, you’re not going to get their vote unless you resolve that question.

While the issues before a lower appellate court are simpler, at the Supreme Court the justices are “thinking about 100 things that have nothing to do with your case. They’re thinking about the precedential implications. They’re thinking about things like, ‘How does this position me on other issues that I care deeply about, like state autonomy. Like who interprets the Constitution?’”

“There are all these other issues that they’re thinking through that have nothing to do with what the right outcome is in your case, but the outcome in your case is going to be influenced by those concerns.” No matter where you give an oral argument, listening is paramount.


The Best Kept Secret About Depositions

In contrast to a few decades ago when trials were common, studies show that over 90 percent of all lawsuits are settled before trial. For those cases that settle, the deposition is very often the event that becomes the turning point. It is the time when you cause the opposing witness to collapse, or your witness irreparably falters. Consequently, the deposition becomes the moment when one side realizes it cannot recover, and the case needs to be settled.

Despite the critical importance of depositions, most lawyers do not take them seriously enough whether they are asking the questions (known as taking the deposition) or asserting objections when their client’s deposition is being taken (known as defending the deposition).

When a lawyer is defending a deposition, he incorrectly believes that any mistakes his witness makes can be corrected later. Such conventional wisdom could not be more wrong. While it is true that the witness can make changes to the deposition transcript after the deposition, any substantive changes can be used against the witness with devastating effect at trial. For example, at trial, opposing counsel could accuse the witness, “You changed your sworn deposition only after you consulted with your lawyer after the deposition and realized that what you said the first time would really hurt your case.” In short, for all intents and purposes, deposition testimony is trial testimony. A bad deposition can’t be fixed and can ruin a case.

Likewise, most lawyers taking a deposition are unprepared. They spend little time learning the law or reviewing documents before questioning the witness. The main reason for this lackadaisical attitude is that the attorney mistakenly believes that he can get prepared when it counts at trial. But since over 90 percent of the cases settle, such a belief is misplaced.

I recently spoke with Michael Brickman, one of the best lawyers anywhere. His immense preparation for depositions pays off in spades. Not surprisingly, his deposition transcripts read like an expertly executed cross at trial. He told me his key to success is knowing the law and the facts better than the witness. He also shared with me some wisdom I will long remember: “[T]he best lawyers are not the smartest but they are the ones that are best prepared, work the hardest, and put in the time.” Excerpts from Brickman's depositions and his strategies for success are detailed in Turning Points at Trial: Great Lawyers Share Secrets, Strategies, and Skills.


A Cross-examination Principle that is Wrong

One of the worst strategies on cross-examination is to make subtle points with the “brilliant” idea that you will tie everything together in closing. I have read about this principle and heard it taught at CLE so many times that it makes my blood boil. It is a widely accepted principle, but it makes no sense.

The idea is that if you sneak in some questions here and there on cross-examination that are helpful, you can then remind the jury in closing of the answers you got when you asked the damaging question in the middle of a long cross. What is the logical reason why this won’t work? If the jury doesn’t notice you asking the damaging question because you have slipped it in, why are they going to be persuaded in closing by your reminding them of something they won’t remember. Even if you had the transcript of the cross-examination to show them, their memory of your long and dull cross has been in their brains for several days, and you are not going to change their impression of it.

Instead of following this wrong advice, let’s look at the correct way to do it whether you are in trial or a deposition. Mark Lanier, who I interviewed in Turning Points at Trial, is currently trying a civil case against Johnson & Johnson and DePuy on behalf of plaintiffs who had hip replacement surgeries with DePuy hip implants that allegedly were designed badly.

Lanier was cross-examining the director of marketing for DePuy. His cross-examination took an entire day. Do you think he snuck in some subtle questions hoping to wrap it all together in closing? No. For the entire day, he had three themes. That’s it. And just so it was crystal clear for the jury and the witness, he wrote each theme on the top of a sheet of paper. Throughout the cross, he would return to the theme at the top of the paper and remind the jury what his point was. His three themes were 1) “I want the jury to hear from you how marketing/sales run the company, not science,” 2) the wording you used in advertising DePuy hip implants provided confusion instead of clarity, and 3) Johnson & Johnson and DePuy are companies that are intertwined (Johnson & Johnson is denying responsibility for what DePuy did).

In your next cross-examination, don’t hide what your themes are from the witness or jury. Set out your themes, have the documents to back of your points, and you will win your case during cross instead of pretending you can win it in closing by trying to tie together subtle points the jury won’t remember.


Cross-Examination's Greatest Myth

Cross-examination occurs after the attorney who has called the witness to trial has asked her questions, (direct examination). While I believe direct examination is the most difficult part of a trial, cross-examination is the scariest. How do you prove to the jury that the witness who has just helped the opposing side is really not that helpful or should not be believed?

The reason cross-examinations are usually disasters is that attorneys believe in the myth created by Hollywood that an attorney should be able to get a witness to confess to lying. For this reason, cross-examinations are often more suicidal than homicidal. Why? No witness is ever going to confess that he is a liar. Consequently, your goal should be to prove that the witness is untrustworthy, not get the witness to admit it.

Cross-examinations are scary not only because attorneys are under the mistaken belief that they should get a confession as seen on TV or in movies, but there is the real fear that the witness won’t answer their questions and will hurt them by repeating damaging testimony from the direct examination.

In Turning Points at Trial, I interviewed Alan Dershowitz who shows how his preparation, creativity, and bluffing on cross-examination caused a turning point when he was defending a terrorist. In another interview, David Bernick, one of the most respected civil defense attorneys, takes readers behind the scenes to show how he developed clear themes and controlled an extremely difficult witness on cross-examination in a trial that made national headlines. Those cross-examinations were turning points at trial because the attorneys did not try and get the witness to confess to being a liar but instead they had the simple and achievable goal to prove the witness was a liar. It is this great lesson, proving that the witness is a liar instead of trying to get the witness to confess to being a liar that almost every lawyer fails to learn until it is too late.

One way to make sure you are on the right track is the following test: if you are calm in your questioning and have documents or common sense on your side to prove your point that the witness is a liar, you are achieving your goal. On the other hand, if you are arguing with the witness, frustrated, and angry that the witness will not admit she is a liar or has lied in the past, then, you are headed toward disaster.


A Bottom Line Message that Wins at Trial

Do you know what your most important case is really all about? Probably not. Can you boil down all the facts into a simple sentence (a bottom line message) that explains to a judge, mediator, or jury why you should win? Probably not. The reason you---and me---make this mistake is that it takes a lot of effort. But the effort is worth it because doing this exercise affects outcomes.

In Turning Points, I interviewed Tom Girardi about this exercise. He does it for all his big cases. You might remember Bryan Stowe, who was a San Francisco Giants fan who was attending the opening day game at Dodgers stadium and was wearing the jersey of the visiting Giants. He was brutally assaulted on the way to his car after the game. Girardi had the almost impossible task of suing the Dodgers in their home town of LA and trying to find jurors who would rule against the beloved Dodgers. Girardi explains how he came up with a winning bottom line message and how you can to. In short, he learned through focus groups that while potential jurors loved the Dodgers, they hated the former owner of the Dodgers, McCourt, who was the owner when Stowe was injured.

So, Girardi came up with the bottom line message: ABMD defense. That is, the Dodgers were going to blame the assault and lack of security on Anyone But the McCourt Dodgers. He wanted to constantly remind the jurors that he was suing the hated McCourt Dodgers and that the Dodgers were not going to take responsibility as they should.

But the importance of boiling down a lot of facts down to their essence is a must exercise for leaders in the courtroom and all walks of life. I was recently reading Doris Kearns Goodwin’s masterful biography of LBJ. She wrote about LBJ’s failure in essence to have a bottom line message about the war.

She explained how LBJ would have lunch every Tuesday with leaders of his Cabinet and national security advisors to plan the next steps for the Vietnam War. Goodwin faulted these meetings because the attendees knew that LBJ wanted the meetings to focus on the operational rather strategic questions and on logistics instead of structural considerations. For example, the meetings would discuss bombing targets, food rations, and new equipment that was available but never once the nature of the war or its importance to national security. She wrote, “Someone once said as he watched Dean Rusk hurrying to the White House for a meeting of the Tuesday lunch, ‘If you told him right now of a sure-fire way to defeat the Vietcong and to get out of Vietnam, he would groan that he was too busy to worry about that now; he had to discuss next week’s bombing targets.’”

Spend some time over the next month thinking of a bottom line message of your most important cases. It will make all the difference in the outcome.


The Qualities of Great Trial Lawyers

The Qualities of Great Trial Lawyers

To become a great trial lawyer, you need eightBelow is an examination of certain qualities: you must develop your own style, tell a compelling story, see your case through the jurors’ eyes, be prepared, adopt an attitude of less is more (the rule of three), never compromise your integrity, passionately argue your case, and show charisma that you need to develop in order to become a great trial lawyer. Let’s discuss the first one here.

The goal of my book Turning Points at Trial: Great Lawyers Share Secrets, Strategies and is not to make every lawyer the same, even if it were possible. Instead, it is to give you access to great trial lawyers, transcripts of their trials, and the tools that have proven successful for many different types of lawyers in a wide- variety of circumstances so that you can use them to develop your own style. When I interviewed Alan Dershowitz for Turning Points, he told me that “people all the time ask him, ‘How can we be more like you?’ I say, ‘Don’t be more like me, be more like you. Figure out what you do best and make the argument fit your particular strengths and personality.’”

For example, if you are not folksy, don’t try to be. If you don’t remember details well, don’t try to be a master of them. However, that doesn’t mean you should not try to improve your skills. The first step to developing your own style is to watch other attorneys. See what works for them in the courtroom and see if it is something that would fit your own personality that you could use in your next trial. Surprisingly, you can get through three years of law school without ever stepping foot inside a courtroom.

Every law student--and even experienced lawyers--needs or lawyer needs to spend time at the courthouse watching different trials. You will see a variety of styles and get ideas to develop your own, based on your own strengths and weaknesses. Then you need to study transcripts to learn how to execute winning trial skills.

Once you are in trial yourself, get feedback from as many people as possible afterwards: the court reporter, the judge, the bailiff, and anyone who was listening. Ask the judge if you may speak to the jury. This feedback is essential to determine how you can improve. Find out if you need to be more or less aggressive, speak softer or louder, put on more or less evidence, and so on.

One simple tip you can do right now without even going to the courtroom. Look at your last deposition transcript and get rid of the verbal pauses you are unknowingly using. I bet that you start most of your questions with either of these verbal pauses which can be very annoying to a jury over a long period of time: alright, okay, and, uhm, thank you, and so. Even worse, you probably use those in every day conversation. Become aware of the word you use and get rid of it starting today.


The Six Factors that Determine a Trial's Outcome

Every lawyer can remember two factors that were discussed in the first days of law school: “If you have bad facts, argue the law; if you have bad law, argue the facts.” For example, if you represent a plaintiff against a large company that put out a product that hurt your client, but the law is such that it would be difficult for a jury to find the company liable, argue the facts of the case: your client is badly injured, and justice must prevail. In contrast, if you represent the defendant, argue the law: there can be no finding of liability even though one naturally would feel sorry for the plaintiff.
But there are four other important factors you need to be aware of, each of which can determine the outcome of your case. Be aware of them when you go to trial or evaluate your case for settlement. Witnesses bring the facts to life. As a plaintiff’s attorney, you may have compelling facts (e.g., the defendant admitted running the red light and hitting your client’s car), but if the plaintiff is not likable, the amount the jury awards him will certainly be effected. Many attorneys have a blind spot for this fact which should be obvious.
Likewise, the biases of jurors are very important, since they see the facts of the case through the lens of their own perceptions. In addition, the location of a trial is important. An argument by plaintiff’s counsel that a corporation should be punished severely is going to be received by jurors more readily in certain parts of the country than others depending on the jurors' prevailing attitudes.

The judge is another important factor. If the judge likes your case and gives you favorable rulings on evidence, that can certainly be outcome determinative. Moreover, judges sometimes fail to shield their opinion of the case from the jury. Jurors notice the tone of a judge’s voice when he rules on objections, speaks to counsel, or asks questions of witnesses, and his facial expressions are noted as well.

The final factor is the attorney. The impact can be significant. The facts that a jury hears are the result of the attorney’s preparation and investigation prior to trial. For example, an attorney controls what documents have been discovered and what witnesses have been interviewed prior to trial to support his case. Moreover, through effective presentation at trial, great trial attorneys get more favorable verdicts because they have been able to present a clear and compelling case. In addition, the jury is also influenced by the attitude and demeanor the attorney projects.
So, the next time you win or lose a trial, it may be your trial skills that carry or cost you the day, but remember that there are many other factors in play.


The Reason Why Direct Examination is So Difficult

Direct examination is the part of trial when an attorney usually asks favorable or neutral witnesses questions that help prove his or her case. Most attorneys incorrectly assume this task is easy and their lack of preparation shows.

One challenge is that unlike normal conversations between two people, the witness cannot ask the lawyer questions. As a result, the attorney must create a conversation with the witness. Because this is unlike any conversation in real life, I believe this is the hardest part of a trial because it goes against our natural instincts.

Another challenge is that the witness is scared to death. Gallup conducts a poll each year that asks Americans what their top fears are. Public speaking is routinely the number one fear. It beats out snakes, drowning and even death. When the comedian Jerry Seinfeld heard about this poll, he joked that if you believed Gallup, it meant that the person at a funeral giving the eulogy would rather trade places with the person in the casket.

In addition, lawyers rarely empathize with their witnesses and it affects outcomes. Lawyers usually just tell their witnesses, “Tell the truth, and don’t worry about anything else.” Then, the witness gets on the stand and the lawyer instructs, “tell the jury what happened,” and the train wreck begins. The witness is not only scared of speaking in public, but the courtroom may be the most intimidating place anyone could try to tell his story. Not only is it an extremely formal setting, but the witness is under oath. In addition, there is a court reporter who is recording the exact words the witness says. Finally, there is an opposing attorney who has spent weeks preparing for his chance to tear the witness’ testimony apart.

Not only are direct examinations difficult, they are extremely important. There is a Jewish proverb which declares, “The drunkard smells of whiskey—but so does the bartender.” Your job on direct examination is to show the jurors that your witness is indeed the bartender. You want them to see that your witness is trustworthy, likeable and sober. If you don’t, the opposing counsel will certainly show them that your witness is a drunkard.
examination is the part of trial when an attorney usually asks favorable or neutral witnesses questions that help prove his or her case. Most attorneys incorrectly assume this task is easy and their lack of preparation shows.

One challenge is that unlike normal conversations between two people, the witness cannot ask the lawyer questions. As a result, the attorney must create a conversation with the witness. Because this is unlike any conversation in real life, I believe this is the hardest part of a trial because it goes against our natural instincts.

Another challenge is that the witness is scared to death. Gallup conducts a poll each year that asks Americans what their top fears are. Public speaking is routinely the number one fear. It beats out snakes, drowning and even death. When the comedian Jerry Seinfeld heard about this poll, he joked that if you believed Gallup, it meant that the person at a funeral giving the eulogy would rather trade places with the person in the casket.

In addition, lawyers rarely empathize with their witnesses and it affects outcomes. Lawyers usually just tell their witnesses, “Tell the truth, and don’t worry about anything else.” Then, the witness gets on the stand and the lawyer instructs, “tell the jury what happened,” and the train wreck begins. The witness is not only scared of speaking in public, but the courtroom may be the most intimidating place anyone could try to tell his story. Not only is it an extremely formal setting, but the witness is under oath. In addition, there is a court reporter who is recording the exact words the witness says. Finally, there is an opposing attorney who has spent weeks preparing for his chance to tear the witness’ testimony apart.

Not only are direct examinations difficult, they are extremely important. There is a Jewish proverb which declares, “The drunkard smells of whiskey—but so does the bartender.” Your job on direct examination is to show the jurors that your witness is indeed the bartender. You want them to see that your witness is trustworthy, likeable and sober. If you don’t, the opposing counsel will certainly show them that your witness is a drunkard.