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Each issue of The Brief, the Section's quarterly magazine, includes an array of practical articles of interest to plaintiffs' and defense lawyers who practice tort or insurance law.  In addition, the popular "Practice TIPS" section provides practical, how-to advice on practice and litigation matters.

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TABLE OF CONTENTS

The Brief
Spring 2010 Vol. 39, No.3
Article Abstracts

" Facilitating Rapid Cognition: How to Develop a Trial Theme That Sticks with a Jury"
Susan H. Farina
The concepts of "thin-slicing" — the act of reaching immediate, unconscious conclusions that influence behavior — and "sticky" ideas — those that stay with an audience — are already at work in trials without the participants even being aware of them. The author suggests that understanding these concepts and using the psychology underlying them to shape a trial theme and strategy may significantly affect the ultimate success or failure of a client's case.


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" Access to Insureds' Privileged Communications via Cooperation Clauses "
Christopher Mickus and Patrick Frye
Pursuant to a cooperation clause in its insurance policy, an insured may have to share privileged communications with its insurer even if the insurer intends to use that information against it. Two litigators contend, however, that whether privileged information must be shared should depend entirely on the wording of the cooperation clause, and a court should not go beyond the wording of the clause to determine whether the insurer has contracted for access to the insured's otherwise privileged communications.


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" Building a Believable Case through Credible Witness Testimony "
Alan R. Dial and Leslie Ellis
In most cases, evidence is established through the testimony of witnesses. A lawyer may have great facts, strong case law, and a sympathic jury, but if his or her witnesses lack credibility, obtaining a favorable verdict will be next to impossible. Two experts examine four common credibility issues a litigator may encounter when deciding whether to call a witness to testify — and how counsel can work with the witness to mitigate them.


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" Winning in the Beginning by Winning the Beginning "
Dominic J. Gianna and Lisa A. Marcy
Research indicates the most jurors tend to adopt one side's point of view early in a trial — 10 to 15 percent may decide during the opening statement. Two trial advocates examine how litigators can win in the beginning by crafting a powerful, passionate, and persuasive opening statement that motivates jurors to look at the case from that side's point of view throughout the trial — and empowers them to persist, convince other jurors, and convert that preference into their vote.


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" Understanding Jury Psychology through Research: A Powerful Technique for Your Trial Preparation Arsenal "
by Ann F. Ketchen
Understanding how jurors tend to think and use technology, and interpreting how their attitudes, demographics, and learning styles will surface in a deliberating jury can help lawyers know ahead of time the best way to present evidence to obtain a favorable outcome. One consultant encourages litigators to consider the benefits of pretrial surrogate jury research.


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" Balancing the Model Rules and Zealous Advocacy: Don't Step over That Line "
by Jan M. Levin and Alicia M. Schmitt
Under the ABA Model Rules of Professional Conduct, lawyers must be both competent and diligent. However, in providing strong advocacy, attorneys are required to balance their duties to their clients against their sometimes countervailing duties as officers of the court. the authors examine the limits on attorneys in Rules 3.1, 3.3, and 3.4; discuss "gray area" issues where zealous advocacy bumps up against duties to the tribunal and to a counsel's opponents; and caution lawyers about the consequences of going too far.


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" Mediation: The Flexible Approach to Settling "
by Sarah E. Worley
Mediation offers litigating parties a confidential forum to explore strengths and weaknesses while maintaining trial strategies, probe positions using a neutral mediator, and secure the presence of witnesses and decision makers in an orderly manner. One mediator discusses how to decide whether alternative dispute resolution is appropriate; how to get started, prepare for, and conduct a mediation session; and the benefits of follow-up.


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