Persuasive Litigator

Litigation Postscript's Centennial: The Top 10 of the First 100

By: Persuasion Strategies -

 
Litigation Postscript has just turned one hundred!  Posts, that is.  Through these past hundred, and into the next, we've remained stubbornly committed to the idea of writing articles, not typical blog posts, and including targeted recommendations for litigators in every single post, based on research and experience.  

We're doing that for you.  Yes, you, the one right there in front of the monitor.  So, if you enjoy and benefit from this focus, here is what you should do.  Look to the right.  No, your right.  Higher... higher... Yes, that is it!  The subscription box!  Type your email address there and hit "subscribe."

For this post, we would like to troll back a bit with a list of the ten most-read posts out of the first hundred -- an opportunity to catch up on something you might have missed.  So, based on the magic of Google Analytics, here is the "Best of the Blog."

Avoid the "And Another Thing..." Style in Rebuttal

By: Dr. Ken Broda-Bahm, Dr. Kevin Boully, Dr. Karen Lisko, & Dr. Shelley Spiecker -

For all the careful attention and planning that goes into a good opening statement story, and a strong closing argument structure, the rebuttal can end up sounding like an afterthought -- especially when it is an afterthought.  Composed on the fly while listening to your opponent's argument, your rebuttal can often be reduced to a simple shopping list of the points you'd like to make, without the glue of clear structure or strategy to hold the message together.  While you might think that all a rebuttal needs to do is "clean up" any points that still need more attention, structure remains an important part of the message, especially when we are talking about the last words that your decision makers will hear from you.  The problem with the "and another thing..." structure is that it does nothing to help you prepare, it doesn't aid the audience's comprehension, and it doesn't promote persuasion.  As Supreme Court Justice Antonin Scalia and Bryan Garner note in their recent book, "the scatter-shot approach is no more effective [in rebuttal] than anywhere else.”  Even if your shopping list does give you a clear sequence, if you made that list while your opponent was speaking, then as Lubet's Modern Trial Advocacy points out, you are replicating your opponent's structure, not your own. 

This post is a little special, and not just because the photo of the four of us bears a striking resemblence to the cover of Let it Be.  We decided to put our heads together for Litigation Postscript's first jointly-authored piece, on the topic of what makes for effective rebuttal.  Whenever you get a chance to give a rebuttal, then let it be the best and last word that your decision makers will hear on the point.  Ultimately, a good rebuttal comes as a result of having a clear structure in advance, fitting the most important points that need to be refuted to that structure, and adding in a number of strategies designed to keep you on the offensive rather than the defensive.  Below, we review a number of critical rebuttal strategies, ending with an example rebuttal creatively developed from the general fact pattern of Liebeck v. McDonald's Restaurants, the infamous "hot coffee" case.

Use the Two C's of Voir Dire Strategy to Get from "Three Strikes and You're Out" to Four, Five, or More Strikes

By: Dr. Karen Lisko - 

You are in the throes of jury selection and realize to your immense frustration that you need more peremptories than you have.  If only the other side would share theirs.  Unlikely.  The next best alternative comes in the form of two approaches that can increase your chances of adding to your limited number of peremptories.

Question Your Questionnaire

by: Dr. Karen Lisko -

 

When John Dowd of Akin Gump Strauss Hauer & Feld petitioned the Court for a written juror questionnaire last week in his defense of Galleon Group founder Raj Rajaratnam in this significant insider trading case, he took the most critical step toward genuinely unearthing prospective jurors’ preexisting biases he could have taken.  Most prospective jurors are certain to hold opinions about Wall Street, business executives, and their criminal prosecution.   What is less certain is how much the venire will be willing to disclose about those biases.  Without a doubt, the odds of disclosure went up when the defense submitted the questionnaire. 

As Dowd notes in his motion for the questionnaire and as I mention in my book, Proven Jury Arguments & Evidence, jurors are more likely to self-disclose experiences and biases in writing than in oral questioning in court (my colleague Dr. Ken Broda-Bahm has also written about this recently).  In a different type of litigation, the late Federal Judge Richard Bilby (USDC-Arizona) conducted research and found that one in three prospective jurors will admit in a written questionnaire to knowing someone close who has been sexually abused, while only one in 10 will admit that same fact in oral voir dire (Lilley, 1994).

With that kind of advantage, ensure that your written questionnaire passes three critical tests to you obtain the best information possible.

Let Me Talk You Out of It – Juror Bias During Voir Dire

by: Dr. Karen Lisko

Ever been part of a jury selection where a juror admitted to bias during oral voir dire, only to have someone (opposing counsel, the judge, perhaps you?) try to talk that juror out of that bias?  As a matter of fact, the West Virginia Supreme Court recently held that potential jurors may not be rehabilitated once they express clear bias (O’Dell v. Miller, 2002).  However, many other states continue to allow rehabilitative questioning.

 

A new study just came out in the June, 2010 issue of Law and Human Behavior that studied the effect of “rehabilitative voir dire” intended to get the potential juror to set aside his stated bias for the sake of impartiality during trial.  Much to the study’s authors’ surprise, Caroline Crocker and Margaret Bull Kovera found that rehabilitation did affect verdicts under certain circumstances.  This finding runs counter to much social psychological theory preceding this study and also runs counter to our experience in running mock trials.  Still, it creates good fodder for a blog on the topic.

 

Two key thoughts to consider about rehabilitative voir dire:

 

1. Crocker and Kovera conclude that the effect of rehabilitative voir dire on verdicts likely results from certain jurors’ motivation to adhere to the law.  We agree with the concept that certain jurors try very hard to follow the law, even when it contradicts their personal beliefs.  Other jurors, on the other hand, are more willing to view the evidence through their own filters and then apply the law if it conveniently fits their views of the world.  The key for your case is to find those jurors during voir dire who will view the jury instructions as you hope they will.
   
   
2. Despite promises to set aside bias, we suspect that the length of the trial could fray at the edges of that promise, much like the vow to stay on a diet can falter over time.  We tend to be fairly true to our own belief systems above and beyond well-intentioned promises.  We would never recommend rehabilitative voir dire as a reliable means for changing behavior of jurors.  Spend your energy on uncovering true attitudes jurors hold rather than trying to change their minds.