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Mitch Jackson
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General Discussion  - 
 
How to Apply Cialdini's 6 Principles of Persuasion in the Courtroom via +A2L Consulting 

http://www.a2lc.com/blog/how-to-apply-cialdinis-6-principles-of-persuasion-in-the-courtroom
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Marvin J. Hammerman's profile photoAnthony Morgese's profile photo
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Mitch Jackson
owner

Voir Dire  - 
 
“Save Jurors from Bad Cause Challenges”
by Elliott Wilcox

Imagine that you're being audited by the Internal Revenue Service and need to hire an accountant. Since this is such an important decision, you're going to do a diligent search for the most qualified accountant in your area. You'll probably pick up the Yellow Pages, look for the accountant with the biggest ad, preferably a full-color advertisement on the back of the book, and immediately schedule your initial consultation. (What? That's not how you hire someone to perform a critical professional service?!? You'd base your decision on word-of-mouth reputation and the recommendations of your colleagues? Huh... That's weird.) Walking into his office, you drop two boxes of documents and receipts onto his desk and say, "I'm trusting you with the financial security of my family. I need you to make sure that this audit goes smoothly and keep me out of trouble. Can you do it?"

If he paused for a moment before telling you, "No problem... I think I'm up to the task," how would you react? Would you leave the boxes on his desk and say, "Thanks! Let me know how the audit goes?" Or would you grab the boxes and run?

Now imagine for a moment that you're going to the hospital for a minor surgical operation. Moments before they're about to begin the operation, you hear the doctor tell the nurse, "I'm pretty sure I can do this!"

How would you react? Would you relax, breath deeply, and wait for the surgery to begin? "After all," you'd think, "it's only minor surgery -- what's the worst that could happen?"

Probably not, right? Chances are you'd probably jump up from the operating table, rip the IV from your arm, and bolt out of the room.

You'd never accept equivocal answers from the people entrusted with safeguarding your property or your life. Even though it's only money and only minor surgery, you'd immediately demand a different accountant and a different doctor, because your life is too important to risk on someone who's "pretty sure" he can do the job.

The same thing is true in the courtroom.

During trial, jurors will be entrusted with safeguarding your client's money or liberty. To do that, they'll need to be fair, and they'll need to follow the law. Yet how many times have you had a juror tell you, "I think I can follow the law?" or "I'm pretty sure I can be fair?"

Usually, these types of responses are just a juror's honest (albeit conversationally casual) reaction to your questions. It doesn't necessarily mean the juror won't be fair, but it's no guarantee that he will be fair, either. Under the law, these types of answers are considered "equivocal," which means that either you or your opponent may now be able to strike him for cause by showing the judge that the juror's equivocal answer raises a reasonable doubt about his ability to be fair or to follow the law.

Getting rid of a juror for cause allows you to use your peremptory strike against another witness, so in reality, a cause challenge is actually worth two strikes. That's why equivocal answers can be dangerous. A single equivocal answer may give your opponent all the ammunition she needs to strike one of your favorable jurors for cause, saving her precious peremptory strikes to get rid of additional jurors who may be persuaded by your case.

What do you do when a potentially favorable juror gives you an equivocal answer?

Many lawyers try to shove an unequivocal answer down the juror's throat by "rehabilitating" the jurors. (I've been guilty of this in the past). Here's a typical scenario:

Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, in the courtroom, the law isn't really set up to deal with "I think I can" type answers. We like to have more definite answers. Just imagine getting on a plane and the pilot says, "I think I can land this plane safely." Obviously, you'd have some concerns about whether or not you should fly with him. You'd want a definite answer. Can you give me a more definite answer, Ms. Jones? Can you be fair in this case?

Juror: Yes, I can be fair.

The danger in this type of "rehabilitation" is that the court may still have a doubt about the juror's ability to be fair. If the judge thinks that the witness's "Yes" response was merely coerced by your questioning, the witness will still be stricken for cause.

Instead, you need to follow up and let the record reflect how the juror truly feels. One of the best ways to do this is by following up with an open-ended question asking the juror to elaborate on her answer. Here's are two examples:

Sample 1:

Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, can you think of any reason why you couldn't be fair in this case?

Juror: No, there's no reason I wouldn't be fair.

Sample 2:

Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, what concerns do you have about your ability to be fair in this case?

Juror: I can't think of any reason why I wouldn't be fair.

By asking the follow-up question, you can save this juror from being improperly stricken for cause, forcing your opponent to use one of her limited peremptory strikes. In the courtroom, you only get one chance to hear from the people who will ultimately decide your client's fate. Hopefully this tip will help you make the most of it!

________

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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To take advantage of the jury’s most attentive moments, cross-examination should be designed to keep jurors alert and awake at key moments.
A successful evangelist once said about his sermons: “Nobody ever got religion after the first twenty minutes.” His time estimate may be wrong, but every evangelist and trial attorney has wrestled ...
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Mitch Jackson
owner

General Discussion  - 
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Mitch Jackson
owner

Opening Statement  - 
 
New free webinar I wanted to share with you from A2L Consulting: “5 Ways to Maximize Persuasion During Opening Statements”  I'll see you there!  http://communications.a2lc.com/5-ways-to-maximize-persuasion-during-opening-statements
If you can win the battle of opening statements, you'll likely win your trial. Up to eighty-percent of jurors will make up their minds about your case during opening statements. In this webinar you'll learn the top-five ways to maximize persuasiveness during opening statements. From how to tell compelling stories to visually supporting your key arguments, this one-hour will reveal the best secrets from courtroom persuasion experts. Ryan H. Flax, ...
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Lee Olive

General Discussion  - 
 
Top 10 Tips for Young Trial Lawyers
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Mitch Jackson's profile photo
 
All good tips!
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Mitch Jackson
owner

Voir Dire  - 
 
These VHS tapes are probably 25 years old. Still pure gold!
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We still use our "Preparing the Witness for Deposition" from Knowles, and I believe it was created in the 1990's.
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Law Merchant

Post Trial/ Appeal  - 
 
http://concurringopinions.com/archives/2006/07/must_district_j_1.html

Interesting article regarding whether a Judge is required to give reasons for its order/judgment. Please link more information on this subject in comments if you have it!
Jonathan Adler highlights this astonishing Ninth Circuit opinion on the alleged misconduct of now-embattled District Judge Manuel Real. Some interesting facets of the case (previously blogged about here, here, and elsewhere). First, dissents matter. It is more than tempting to attribute the ...
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Marc Hurd

General Discussion  - 
Suit tossed out of court over a mere $2. Does this seem fair to you?
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When is an expert believable? Jurors judge an expert on six basic tenants. #expertwitnesstestimony  
The expert witness, whether in Ohio, Florida, New York, Texas or Illinois, is being considered by the viewing and listening jury member and judged as to their believability.
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Experts do not have to have a Ph.D., M.D. or MBA. They do have to have the knowledge and understanding of their field that goes beyond the average person.
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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 anyone else interested in litigation and trials (you don't have to be a lawyer to be part of our community. _______________ 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 court and jury trials TrialLawyerTips.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 or 800.661.7044
 
 
Do you know when to request that evidence be admitted for a limited purpose?
It may not be favored by courts or be the parties' preference, but there's a place for evidence to be admitted for a limited purpose. It can be seen as either a creative solution to an evidence adm...
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Mitch Jackson
owner

General Discussion  - 
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Mitch Jackson
owner

General Discussion  - 
 
My Favorite Questions To Ask Jurors

Jury selection takes place at the beginning of most of my trials. It’s my job to pick a jury that will help my client win his or her case.

When I start jury selection often times all I know about my jury panel are the names and occupations of my prospective jurors. I have no idea what their interest, likes and dislikes are. Do they like lawyers? Do they believe in the type of case I’ll be presenting in court? How do they feel about our legal system? Are they politically or religiously motivated? Are they conservative or liberal?

Often times the judge will only give me an hour or two to pick a jury. Good judges will give trial lawyers as much time as we need but that’s another post for another time. The bottom line is that if I pick the right jury then my trial is usually a breeze.  If I pick the wrong jury the entire experience is often times difficult and will probably end up being a nightmare.

So what’s my process? How do I go about finding out as much as I can about the human beings sitting in the jury box? The answer is that I try to ask good questions. This is critically important because if I go about things the right way, I can get a pretty good idea about who’s sitting in the box. At the same time, I can also use this process to start connecting and building trust and rapport with the decision makers.

I’m sharing these techniques with you because you can use the same approach and questions to engage a customer, co-worker or boss. If you’re presenting to a small or large audience, you can also use this approach to connect with your audience and get them to take action.

Before we dive into the power questions, let me start off by suggesting you not ask too many “yes” or “no” questions. Frankly, most of the time I find them to be completely worthless. If you do need to ask a yes or no question, make sure that it’s done as a sorting or filtering process to help organize your audience for the following types of questions.

Specific Questions

I love the question, “How did that make you feel?”

When a juror tells me they’ve been in an accident or been involved in a similar type of legal matter, after chatting about the specifics and connecting a bit, I’ll then ask, “How did that make you feel?” The answer I usually get really reveals quite a lot and highlights how that person feels about the issue we’re talking about. Often times I need to follow up a person’s initial answer with several additional open-ended questions but this single question has allowed me to pick juries who have eventually awarded million dollar results to my clients.

When it comes to having a juror or witness during the trial recall a conversation, rather than asking, “What did you say or what did he say?” I will ask the more powerful question: 

“Describe the conversation between you and Mr. Jones.” 

This type of question invites the other person to tell her version of what was said in a back and forth story type of narrative. It’s interesting to note that this approach works really well when asking questions to complete strangers.

Along the same lines, if I would like a juror to open up and tell me more about a particular event or experience I will ask:

“Tell me about the time when…” or maybe “Tell me the story when…”

In cases where a juror, family member or friend was harmed in a way similar to that of my client (can no longer walk, talk, earn a living…) I will ask:

“Tell me about the day when your realized… (ex: Sam would no longer be able to walk, go to work and provide for his family)” 

This type of question invites a story type of dialog response from the other person. This is especially true if you listen carefully and then follow up with more specific open ended questions.

When discussing the very real issue of whether or not a potential juror believes that money damages may or may not make a difference in the case, after hearing from one juror I often times turn and focus my attention to the next juror sitting to his left or right and ask:

“What do you make of that?” or “How do you feel about what Mr. Jones just said?”

This new member to the conversation can’t answer the question with a simple “yes’ or “no” and so the learning process continues. See how this dance works?

Often times jurors will get emotional during the selection process because the facts hit too close to home. They have read about the case in the newspaper or experienced a similar tragedy in their own family. When this happens I’m always respectful. Having said that, it’s important to find out exactly what’s going on inside the other person’s head. I’ll usually start the process by asking:

“Why is this case (story or issue) so meaningful to you?”

When needing to explain a series of events, rather than asking, “What did you do?” or “What did you do next?” I like to ask a more guided type of open ended question and then fill in the blanks with follow up questions as needed. I’ll normally ask:

“What were the steps that got you from A to B?” or “Please explain the steps you took to (go from this point in time) to (the start of something to the final goal or outcome)?” For example, “When you were designing the new smartphone app, what steps did you take from concept to final production?” 

Conclusion

There’s no better way to get to know someone than by asking good open-ended questions. Once you do ask the right type of question, stop talking and start listening and pay attention to not only what the other person has to say but also her body language and how she says it.

Hope you found this tip helpful. If so, please share :-)

Mitch
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Mitch Jackson's profile photoBill Powers's profile photo
3 comments
 
I'm am SO sick of the artifice we must deal with on Google, Twitter, FB, et al.

The truth is, the BEST lawyers are likely the WORST social media promoters.

It was so refreshing to see what matters: quality content. Quality content from a lawyer's lawyer perspective.

Thank you for picking juries. Wish the Google algorithm had a way to discern whom actually tries cases and whom regularly posts.

Our state motto is Esse Quam Videri. It has never been more true.

Billy 
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Jury trial coming up? Consider these 5 practical suggestions for voir dire.
When next faced with preparing for jury voir dire examination before trial, consider these five practical suggestions. Determine the types of jurors that you do and don't want. Rather than selectin...
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Mitch Jackson
owner

General Discussion  - 
 
How to BULLETPROOF Your Jury Instructions
by Elliott Wilcox

Every judge I've practiced before seems to have a different take on how the jury instructions should be prepared.  Some judges ask the plaintiff to prepare draft copies of the instructions and the verdict forms.  Others ask both sides to prepare an agreed-upon set of final jury instructions and verdicts.  Some judges prepare the first draft of both, and then edit them with both attorneys present.  Still others don't prepare any written instructions at all, instead preferring to read from a standardized jury instruction book.

Our trial hadn't been that complicated.  It was a straight-forward "Robbery with Firearm" case, and the case presentation was completed in a single day.  Now we were in the home stretch, finalizing jury instructions and verdict forms, getting ready for closing arguments.  The judge emailed a draft copy of the instructions and verdict forms to both parties, so we each had a chance to read through everything on our own.  Then the three of us went through every document page-by-page, approving each individual instruction and verdict form.

Now picture this -- you've got three experienced trial attorneys, each with a vested interest in the accuracy of the instructions and verdicts, reviewing everything page-by-page to look for any errors or omissions.  With that much brain power in the room, it should be impossible for us to miss any mistakes, right?

Wrong.

As the judge read the instructions aloud to the jury, she noticed two or three important mistakes and an important typographical error in the verdict forms.  Luckily, she was able to correct them on-the-fly, and she read the proper instruction to the jury.  But how did we miss those mistakes?  Even though I'd read everything word-for-word, even though my opponent had read everything word-for-word, and even though the judge had read everything word-for-word, somehow we'd still managed to miss those mistakes.

Have you ever made a similar mistake?  Maybe it was the jury instructions, the verdict form, or perhaps the wording of an important stipulation, but have you ever missed an important error in your documents?  Here are three reasons why we miss those mistakes, and how to avoid making the same mistakes in the future:

1. We were looking for what we expected to see.  All three of us had expected the instructions and verdict forms would be correct.  Between the three of us, we probably had more than two or three hundred trials under our belts.  We'd each seen these standardized jury instructions dozens and dozens of times.  We knew what was supposed to be there.  And because we were accustomed to seeing the same instructions, we didn't examine the documents with a critical eye.  Our eyes only saw what we expected to see. 

Solution: Have someone who isn't familiar with your case read through whatever document you're preparing.  They'll approach the document with a neutral eye, and will be able to see the typos, errors and omissions that your eye may skip over.

2. We were going too fast.  The judge had told the jury to take a 20 minute break while we prepared the instructions and verdict forms.  It was almost 5 o'clock in the evening, so we were working under time pressures to prepare the instructions and get the case to the jury at a decent hour.  The jury was right outside the courtroom, and we didn't want to waste their time.  As a result, we sped through the instructions faster than we should have, and missed important errors.

Solution: Prepare the documents when you aren't under a time crunch.  Give yourself enough time to patiently review everything.  The best time to prepare proposed jury instructions is when you first get the case.  Preparing your instructions at the onset of the case will help you organize your case presentation and anticipate any potential defenses.

3.  We didn't read it properly.  We reviewed the first draft of the instructions by reading them on the computer screen.  It's more difficult to review something on your computer screen than it is to review a hard copy of the same document.  When I'm writing these weekly articles, I edit the article on my laptop, checking and double-checking the article until I'm convinced I've caught every mistake.  You can guess what happens when I review the hard copy of the article -- that's right, even though I'm positive I've already caught every error, I always find more mistakes. 

Solution: Read it aloud.  No one in my trial caught the errors until the judge read the instructions aloud.  Recently, as I was reading some of these articles aloud to publish them as Podcasts, I was surprised to discover mistakes.  Even though I'd proofread the articles numerous times (both on-screen and on paper), I still missed some mistakes.  It wasn't until I read the article aloud that I caught all of the mistakes.  You're much more likely to catch any mistakes when you read the document aloud, so if accuracy matters, take some extra time to read it aloud.

You know that the accuracy of your jury instructions will make a difference in the jury's verdict.  To ensure that the jury is properly instructed the next time you try a case, simply follow these three quick and easy steps, and your jury instructions should be bullet-proof.

_________
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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Mitch Jackson
owner

General Discussion  - 
 
After 30 years of trying cases the best trial tip I can offer is to...
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Dr. Kenneth J. Manges & Associates Inc.'s profile photoMitch Jackson's profile photoDaniel Orlow's profile photo
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+Dr. Kenneth J. Manges & Associates Inc. Applying all the advanced techniques you have been kind enough to share in our community are of course, very important. Having said that, some of my biggest verdicts simply involved keeping things simple, preparing and caring.
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Ohs, Ahs and ums.... when an expert starts to falter, their perceived credibility becomes a source of juror doubt. ‪#‎expertwitness‬
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Marc Hurd

Evidence Related  - 
 
Some interesting insight into how jurors think in an employment/hostile work environment case. 

http://abovethelaw.com/2015/02/alexandra-marchuk-v-faruqi-faruqi-a-juror-speaks/
A juror in this high-profile, high-stakes case explains what went on inside the jury room.
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When the evidence is about the numbers, present them visually through graphs or a visual display. ‪#‎evidence‬ ‪#‎jurytrials‬
Numbers are neither good nor bad. They are digits and when they are provided to a jury, they can be presented visually through graphs or spoken with visuals.
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