December 2013 - Trials and Juries

Things You Should Know

SECTION ANNUAL CONFERENCEWe are thrilled to invite you to attend ABA Section of Litigation Annual Conference, which will be held April 9–11, 2014 at The Phoenician in Scottsdale, AZ. The conference will offer 40 CLE sessions, including 3 plenaries, and feature 150 of the nation’s most respected judges, academics, and trial lawyers as they address litigation development and techniques in the trial advocacy. In addition to the education portion, the Section Annual Conference provides an opportunity to meet and network with our distinguished guests and fellow participants. Register Now!


Leadership Fellows Class of 2013—The Call to Service
By Andrew B. Caldwell
 Growing up in Rock Hill, SC, I fondly remember participating in the Mayor’s Teen Volunteers summer program—a program comprised of middle school students from the community who are personally selected by city officials to volunteer as employees at various businesses in the community. Read More

Public Service: Death Penalty Representation Project
The American Bar Association created the Death Penalty Representation Project to raise awareness about the lack of representation available to death row inmates, to address this urgent need by recruiting competent volunteer attorneys and to offer these volunteers training and assistance. Read more here.


Theme of the Month: Business Development


The Section has many resources to assist litigators. The theme of this month's email is Trials and Juries. Here’s a sampling of materials on Trials and Juries.


Key Subjects Learning


Building Your Case for the Jury
By Kevin P. Durkin and Colin H. Dunn Robert Frost once said that a “jury consists of 12 persons chosen to decide who has the better lawyer.” For us lawyers, that’s good news because it makes us think that we play some role in how a jury trial comes out. Read More


The Fine Art of Litigation Involving Non-English-Speakers
By Erika Ronquillo A trial is often analogized to a performance. Naturally then, the courtroom becomes the stage and we are cast as both actor and director. If lawyering is a theatrical performance and our audience is the jury, how do we handle actors unable to speak or understand English? Read More


Voir Dire: Don't Let the Judge Cut You Out
By Hon. Mark Drummond Ask a trial lawyer the purpose of voir dire and the answer will be different. “The lawyers are interested in a partial jury. I do not want an impartial jury. I want a jury that is in my favor from the beginning, and you can quote me on that,” says Paul Mark Sandler, Baltimore, cochair of the Section of Litigation’s Institute for Trial Training and chair of the Special Committee on Voir Dire for the Maryland State Bar Association. “I do believe that cases are won and lost with the selection of the jury,” he opines. Read More


Ethical Rules for Litigating in the Court of Public Opinion
By Michael Downey Lawyers are sometimes tempted to seek an advantage in a lawsuit by cultivating or influencing media attention to support their case. In other instances, lawyers may believe existing media attention is unjustly casting a negative light on the lawyers’ clients, deserving a public response. Such situations reflect lawyers’ admirable desires to advocate zealously for clients and to protect their clients’ reputations as well as their legal interests. Read More


31 Lıtıgatıon online Jury Instructions: A Road Map for Trial
By Sylvia Walbolt Jury instructions provide the opportunity to tell the jurors about the law they must apply to find in your favor. What could be more important? Yet jury instructions are all too often an afterthought, prepared at the last minute when trial counsel is preoccupied with other, “more important” matters. Beware. Simply put, those other matters are not more important. Read More





Demonstratives Allowed in Jury Room during Deliberations
By Sean T. Carnathan Are demonstrative exhibits helpful to the jury or misleading and unfair? Read More


FIRST-TIME LAWYER: Finding Bad Jurors
By Kelley Barnett For the novice and veteran alike, voir dire makes lawyers more nervous than any other part of trial. Read More


Courts Wrangle with Twittering by Jurors
By Duchess Harris Courts respond to twittering in jury boxes by outlawing social networking activity. Read More


Seventh Circuit Jury Project Confirms Innovations
By Katherine W. Wittenberg Program upholds ABA American Jury Project best practices. Read More


New Jersey Revamps Test for Eyewitness Identifications
By Natasha A. Saggar State supreme court lowers threshold for pretrial hearings, orders new jury instructions. Read More






McElhaney's Trial Notebook, Fourth Edition
By James W. McElhaney Expanded, updated and revised by the author, this edition of Trial Notebook includes 30 years of James McElhaney's clear, graceful and entertaining writing. Read More

Winning the Jury's Attention: Presenting Evidence from Voir Dire to Closing
By Trey Cox Today's jurors, consumed in their own demanding personal and professional lives, are not going to just hand over their undivided attention for as long as you want to stand in front of them and talk. Read More

Pleading Your Case: Complaints and Responses
By Janet S. Kole When you think of pleading your client's case, you undoubtedly envision delivering a stirring oral argument in front of a judge or a jury.  Read More



Sound Advice


Jury Persuasion in a Diverse and Fast-Paced World
By Raymond B. Kim
guides the listener through the art of jury persuasion in our diverse and fast-paced world.






My Odyssey: From Litigator to Litigation Consultant
By Daniel J. Bender Like many law students, when I started at the University of Connecticut in 1992, I did not know where my legal journey would take me . . . Read More


Issues Surrounding the Use of Lay Witnesses
By Hon. Pam Pepper In the last column, we talked about issues you need to consider when you are thinking of calling an expert witness. Read More


Justice? Social Media's Impact on the U.S. Jury System
By Katie L. Dysart and Camalla M. Kimbrough A death row inmate’s murder conviction tossed because of a juror’s tweets during trial. Read More


Excluding Gay Jurors after Windsor
By Shmuel Bushwick  In July, the ABA Journal reported on SmithKlein Beecham Corp. v. Abbott Laboratories (GSK v. Abbott), which, in part, debates whether the equal protection jurisprudence arising out of Batson v. Kentucky, 476 U.S. 79 (1986), applies to sexual orientation. Read More


Vanishing Trial Skills
By Hon. Charles S. Coody We profess to be litigators and trial judges. But how can we comfortably say that when we do not try cases to juries? Read More


Trial Motion Practice Pointers Part I: Pretrial and In-Trial Motions
By Betsy Collins and Taylor N. Barr Because few civil cases ever go to trial (and even fewer go in front of a jury), it is not uncommon for a litigator to practice for several years without ever having to deal with in-trial or post-trial motions. Read More





Minority Trial Lawyer Join News and Analysis
The Minority Trial Lawyer Committee’s goals are to serve as a resource for litigation and business development strategies, and as a network for the sharing of experiences and referrals, to support the career success of minority attorneys. Read More


Trial Evidence Join News and Analysis
The Trial Evidence Committee, which monitors developments in the law of evidence, is comprised of more than 1,300 individuals. Read More

Trial Practice Join News and Analysis
We promote fairness and justice in the American legal system by enhancing the lives and careers of trial lawyers. Read More



Upcoming Events


January 9, 2014
Emerging E-Discovery Challenges in Construction Cases: Tips, Tricks, Tweets, and Texts Webinar/Teleconference

January 30–February 1, 2014
Environmental, Mass Torts & Products Liability Litigation Committees’ Joint CLE Seminar
Park Hyatt Beaver Creek Resort & Spa
Beaver Creek, CO

February 13–16, 2014
Corporate Counsel CLE Seminar
The Westin Mission Hills Golf Resort & Spa
Rancho Mirage, CA





Presented by the Business Torts & Unfair Competition Committee
Tuesday, January 21, 2014 at 1:00 p.m. to 2:00 p.m. Eastern
Renewed attention to the doctrine of alter ego/piercing the corporate veil stems from political debates over the rights and responsibilities of corporations as well as the Great Recession, which has caused litigants to look for as many sources as they can find to collect on judgments. This program addresses the impact of the heightened federal pleading standards on alter ego claims, the application of the doctrine to LLCs, and the use of alter ego to assert personal jurisdiction. Register now!