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Mitch Jackson
owner

General Discussion  - 
 
Why add a second chair to the table?
by Elliott Wilcox

Many trial lawyers don't want to share the glory, but a second chair can prove invaluable in complex cases, cases with large amounts of evidence, or cases with large numbers of witnesses.  Here are three important issues you and your co-counsel should agree upon before adding a second chair to your trial:

1. Decide if your co-counsel will be an "active second" or a "silent second."  Active second chair attorneys question witnesses, cross-examine opposing witnesses, and may even present the opening statement or closing argument.  Silent second chair attorneys take notes, prepare exhibits, and wrangle witnesses outside of the courtroom.  If you and your second haven't agreed upon what role they're supposed to play before trial, your co-counsel will quickly become frustrated as the trial proceeds.

2. The first mate never publicly disagrees with the captain.  You must present a unified front.  Jurors can see everything in the courtroom, so if there's any disagreement between you and your second, at least one of the jurors will pick up on the disharmony.  When that happens, the jurors will start focusing on you, rather than your case.  Although you will ask for their opinions on case strategies or witness examination, your co-counsel needs to understand that your decisions will be the ultimate decisions in the case.  Any disagreements need to be voiced before trial, because once you step inside the courtroom, everyone on your team needs to be on the same page.

3. Only one lawyer may question a witness.  A recent horror story I heard involved an experienced attorney and a less experienced second chair.  The lead defense attorney had fully prepared to cross-examine the prosecution's star witness.  He was chomping at the bit, waiting for the opportunity to dissect this witness.  During direct examination, the witness mentioned something improper or irrelevant.  Before the lead defense attorney could say anything, his co-counsel leapt from his seat and objected.  The objection was sustained.  Unfortunately, since co-counsel had spoken during the witness's testimony, the judge wouldn't let any other lawyer speak during the witness's testimony.  The second chair attorney was obligated to cross-examine the witness.  His cross-examination was a failure, and ultimately, his client was convicted.  The lesson?  Make sure you and your co-counsel agree upon who will be cross-examining each witness, or you could find yourself in a similar bind.

Even if you don't want to have a second chair attorney with you for the entire trial, you should always have someone sit with you during the jury selection process.  Having someone else sit with you during jury selection frees you from your notes, allowing you to talk directly with the jurors.  More importantly, your second will pick up on interactions between the jurors that you may miss, such as when you're talking with Juror #2 and don't see Juror #22 on the other side of the room, who is vigorously shaking his head in disagreement.

___________

Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com
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Interesting post from +NPR and the HiddenBrain.org podcast. Being labeled an expert may actually make someone more close-minded? 
People who are even temporarily given the feeling that they are experts become more rigid in their thinking, and become less likely to be willing to consider new points of view, according to research.
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Michael DeBlis

General Discussion  - 
 
Vanessa Van Edwards is a published author and behavioral investigator. She is a professional people watcher—speaking, researching and cracking the code of interesting human behavior for audiences around the world. Vanessa's groundbreaking workshops and courses teach individuals how to succeed in ...
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Some litigators always save something for their closing argument. But that strategy can be risky..
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Michael DeBlis

General Discussion  - 
 
David Razowsky is the respected former artistic director of the Second City Los Angeles. As a performer at Second City he worked with Steve Carrel, Stephen Colbert, Rachel Dratch, and Chris Farley, among others. David has directed Second City in Chicago, Los Angeles, Detroit, and The Second City ...
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Mitch Jackson
owner

General Discussion  - 
 
How I "listen" in the courtroom (my Friday morning Periscope from Strands Beach)

https://streaminglawyer.wordpress.com/2016/01/23/the-power-of-listening/
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Samuel Partida, Jr.

Closing Arguments  - 
 

Prosecutorial Misconduct Leads To Rape Conviction*

People v. Mpulamasaka - 

http://illinoiscaselaw.com/prosecutorial-misconduct-leads-to-rape-conviction/

Some of the misconduct cited by the court included:

1. The State used evidence admitted for one purpose, ability to consent, to establish the element of force.
2. The State knew that it had failed to establish that the victim was unable to consent and that defendant knew as much, yet argued repeatedly that the jury should consider the victim’s “disability” on the issue of force in that defendant “manipulated” her.
3. During its closing and rebuttal arguments, the State made 21 direct references to the victim’s intellectual limitations.
4. The prosecutors used the victim’s learning disability to confuse the jury on the issue of consent.
5. The State depicted defendant as a “predator” who took “a piece of meat” home with him.
6. During its rebuttal argument, it argued that the Defendant’s expert “was at the rent-a-doctor agency sipping a latte” and that he sold his integrity “for three pieces of silver.”
7. At the same time, the State misstated their own expert’s testimony, arguing that their doctor “told you point blank, she didn’t say it’s likely, she said this was as a result of a violent sexual assault, point blank.” Unfortunately, this was not exactly the doctor’s testimony.
8. By arguing repeatedly, with no evidentiary support, that the victim’s cross-examination answers were not “her own words,” the State violated defendant’s right to confront witnesses.
9. The most troubling aspect of the ASA’s conduct was leaving the podium and sitting in the witness chair to argue the victim’s credibility and courage and then discussing defendant’s credibility.
10. The State wrapped up its rebuttal with a final appeal to sympathy, calling defendant a “bully” who took advantage of the “weakest amongst us.”

http://illinoiscaselaw.com/prosecutorial-misconduct-leads-to-rape-conviction/

Overall, the State served only to inflame the passions of the jury and constructed a completely emotional appeal which ignored the facts in the case.
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Mitch Jackson
owner

Voir Dire  - 
 
*5 Ways to Maximize a Jury Summons Form to Pick a Jury *

http://www.a2lc.com/blog/5-ways-to-maximize-a-jury-summons-form-to-pick-a-jury
Voir dire is not the only way to learn about jurors. You can learn more than you might think from a jury summons form. Here are 5 expert tips.
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About this community

Welcome to our Trial Lawyer Tips Google Plus Community! _______________ This community is for all lawyers interested in trial advocacy. It's also for everyone else who is interested in litigation, trials and preserving the right to jury trial. _______________ Below is the link to our community. Please bookmark and share it with other trial lawyers who are interested in sharing good trial tips and raising the bar when it comes to the art of trial. TrialLawyerTips.com Email Newsletter: StreamingLawyer.com _______________ Important! Please, NO SOLICITATION, SELF PROMOTION OR ADVERTISING. If your post isn't regarding a trial tip (article, video, podcast, link...) then it will be removed :-) Questions or comments? Contact Mitch Jackson at mitch@jacksonwilson.com | 800.661.7044

The Expert Institute

General Discussion  - 
 
Understanding CTE in NFL Concussion Cases - The science (and expertise) behind the degenerative mental disease at the heart of the NFL concussion controversy.

https://www.theexpertinstitute.com/understanding-cte-in-nfl-concussion-cases/
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To get a feel for the difference between good or poor questions to ask on direct examination, check out examples in this blog post.
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ForensisGroup

General Discussion  - 
 
Do Experts Need Design Experience to Testify in a Product Liability Case? #forensisgroup #expertwitness #expertreferral #legalservice #miningengineer #miningexpert #productliability
Plaintiff called two mining expert witnesses. Defendant argued that their testimony didn't meet the standards of Rule 702 and Daubert.
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New post from +Kaye Scholer LLP re: excluding or limiting #fda  regulatory #expertwitness  opinion... 
Introduction It has become increasingly commonplace in pharmaceutical or medical device product liability litigation—particularly large, centralized mass tort litigations involving hundr...
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Your case should be pared down to its essential elements and presented concisely.
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Michael DeBlis

General Discussion  - 
 
Michael is a trial lawyer who puts his heart and soul into fighting for his clients. Michael is known for his creativity, his charismatic personality, and his unyielding dedication to his clients. button. a. Close. arrow. Enter your email & we'll send your PDF to your inbox! button ...
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The Expert Institute

General Discussion  - 
 
We spoke with attorneys, experts and trial consultants to learn how to best utilize trial graphics in the courtroom.

https://www.theexpertinstitute.com/using-trial-graphics-strengthen-expert-witness-testimony/
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Just as with traditional forms of evidence, you can’t get social media evidence in without proper authentication. Here’s how it’s done.
Despite its relationship to new technologies, electronic evidence, including social media evidence, is actually treated the same as traditional forms of evidence in terms of admissibility. You can'...
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Dear +Mitch Jackson I would like to ask for your help . USGreen Building stole my unregistered idea from a non-profit project for solving climate change on 2014 MIT Climate Colab contest . I have worked to solve climate change since 2013. If +Mitch Jackson can spent time for CEB's Effective Introduction of Evidence project , can you spend a little time to help my case , my 4 years work , for the public good , a pro bono time ? I have multi-proofs. I really , really  need someone help . If u can't help me , do you know who can help me ? Thank you .
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Mitch Jackson
owner

General Discussion  - 
 
Be careful with the words you choose in trial

If you’ve been reading my jury tips for years, you know how strongly I
feel that facts don’t win trials by themselves and don’t speak for
themselves.  How a good lawyer presents those facts, builds credibility,and explains why a verdict in their favor is fair and helpful (not just
technically proper) is what truly persuades jurors.

Powerful trial themes that your jurors can relate to their own lives and
beliefs are crucial to helping jurors get behind a verdict emotionally;
the facts are what jurors use to support whatever verdict they’d like to
give.  But jurors are persuaded by the little things too, not just the
big trial themes.  How your client dresses and reacts (with facial
expressions) matters to jurors.  How polite you are with the witnesses
during cross-and how polite the witnesses are with you during cross-
matter to jurors.  I could go on for pages listing little things that
matter, but this month I’m going to talk about something small and
subtle but important:  your choice of words.

Using the right or wrong word when you’re trying to convey an important
message to jurors can make a huge difference.  And while I certainly
can’t cover every important word choice that you could make during your
trials, I can focus on some sensitive words that have meaning to jurors
that you might not be aware of—because these words and phrases mean
something very different to lawyers than they do to regular people.

The first and most obvious set of “no-no” words are “fair” and
“impartial” in voir dire, when you’re trying to get a juror excused for
cause.  I’m sure I’ve written about those words before, but the subject
is worth tackling again because I see these words misused so often in
jury selection.  Most jurors are clueless about their biases; most
of the biased jurors on any panel are convinced that they are “fair” and
that their hatred of insurance companies, refusal to award money for
non-economic damages, or belief that there’s nothing wrong with
companies firing older employees still allow them to be “impartial.”  In
these jurors’ minds, awarding $0 for pain and suffering is “fair,”
awarding millions is always “unfair,” and so they are more than capable
of being fair.  Just last month, I heard a juror explain that she could
never award money for emotional distress, but that she could be “fair”
and could “definitely follow the law... but not in a way that the
plaintiff would like.”  Use the words “fair and impartial” carefully;
when I’m consulting in trial, I advise my clients to only use those
words when they want to rehabilitate a juror who has expressed biases,
because they’re likely to say “of course I can be fair.” But when you’re
trying to get someone off for cause, you’re better off using concepts
like “would it be tough for you to follow that instruction?” or “hard to
set aside those feelings.”

Another phrase that is a mistake to use in jury selection--but that I
hear spoken constantly—is “do you have a problem…?”  Jurors don’t think
they have problems.  Telling someone they have a “problem” sounds
insulting. So when a lawyer asks them “would you have a problem deciding
this case fairly given your experiences?” or “would you have a problem
awarding punitive damages?” their strong impulse is to feel insulted and
insist that they don’t have a problem.  They’re fair and reasonable in
their own minds, so it’s you (the lawyer) who has a “problem” if you ask
them to follow a law they don’t believe is fair. The solution is an easy
fix; instead of using “problem,” say something like “would you have a
difficult time...” or “do you feel like it seems unfair or unnecessary
to...” follow whatever jury instruction you’re concerned they won’t
follow.

The key to recognizing which words to use and which to avoid have to do
with negative connotations that jurors read into phrases, especially
words with legal meaning that lawyers don’t view as negative.  Trial
lawyers see all kinds of good, honest people who can’t be fair and
impartial in certain cases, but jurors feel insulted when they’re told
they can’t be “fair.”  Here’s another phrase that seems harmless to
lawyers but has a negative meaning to regular people:  “emotional
distress.”  Sometime over the past 10-20 years, that phrase has come to
mean “bullshit” or “oversensitivity” to jurors.  When jurors hear
“emotional distress,” they immediately think of someone faking
depression to get more money than they deserve.  So whether you’re
representing a plaintiff or defendant in trial, make sure to only use
the phrase “emotional distress” when you want to encourage jurors to say
they won’t award it.  For plaintiff lawyers who plan on asking for
non-economic damages, use the phrase in voir dire to identify your
stingy jurors, and put it away once the jury has been selected. When you
want to convince jurors that it’s fair to award money for mental
suffering, use the real human words that have a connection to something:
“worrying” (about money, or losing your job, or never walking again),
“sadness,” “embarrassment” or “humiliation.”  And when you want to
convince jurors to reject or minimize general damages, keep using the
phrase “emotional distress.”

Sometimes a single, carefully-chosen word can give positive or negative
meaning to everyday legal phrases.  Most jurors don’t have issues with
expert witnesses, but they generally distrust “paid expert witnesses.”
Adding the word “paid” when you talk about an expert on the other side
can be persuasive, for the exact same reason that jurors love
“independent medical examiners.”  The word “independent” (even though
that doctor isn’t usually truly neutral) is convincing to jurors.

Defense lawyers often fret over the pro’s and con’s of conceding
liability in trial; will the jurors appreciate the honesty and be more
forgiving to a defendant who admits liability?  Sometimes the answer
depends on the words used to explain what’s going on to jurors.  I have
often seen jurors react appreciatively when defense lawyers explain that
their client “took responsibility,” even when the defendant is still
fighting over the amount of damages or even disputing causation.  Jurors
love it when they feel like a party is taking responsibility. If I’m the
defense side, I would always use that phrase and never say “conceding
fault.”  But if I’m on the plaintiff side, I would make sure to tell
jurors that the defendant is not taking any responsibility, that all
they’ve done is to “admit that they were negligent and careless” but
won’t take full financial responsibility... or any at all, if they’re
still fighting causation.

In the world of public polling and surveys, it’s fascinating how
influential an innocent word choice or way a question is framed can
significantly skew how people respond to survey questions. In recent Pew
Research surveys, significantly more people said they favored “making it
legal for doctors to give terminally ill patients the means to end their
lives” than favored “making it legal for doctors to assist terminally
ill patients in committing suicide.”  Same concept, but the word
“suicide” is loaded.  Another example, for those of you who find this
stuff interesting:  significantly more people favored giving “financial
assistance to the poor” than favored giving “welfare assistance to the
poor.”  Words and phrasing in trial are no different.  Next time you’re
heading to trial, give some thought to your choice of words, and more
importantly how you’re subtly employing those words.

_________________________________

HOW CAN HARRY PLOTKIN HELP YOU WIN YOUR NEXT TRIAL?
Please call (626) 975-4457 or visit www.yournextjury.com and
be ready for your next jury.
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The Expert Institute

General Discussion  - 
 
We compiled a must-read checklist for reference when preparing your expert witness for trial.
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