April 10, 2020

Juries

Building Your Case for the Jury
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. Whether that is true or not, we have to act as though it is. And we use several tools and techniques that we believe help us to do that.

The Fine Art of Litigation Involving Non-English-Speakers
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?


Exclusion of Expert Could Derail Prosecution in Controversial Case
J. Todd Spurgeon This case is an example of the challenges involved with complicated medical causation cases—not only in the criminal context, but in the civil arena as well


Learning to Love Direct Examination | Trial Practice | ABA
Sara E. Kropf The fact of the matter is direct examinations can be more difficult to prepare and effectively execute. Trials are nearly always won based on what happens during the direct examination of witnesses.


Text Etiquette in the Courtroom
Kent A. Lambert
Professor Colin Miller, editor of the EvidenceProf Blog, recently collected three cases concerning the admission and use of text messages at trial.


Top Tips for Presenting the Insurer's Case to a Jury
Anna D Torres The complex nature of insurance, the perception of a huge power and information disparity between insurers and their insured’s and the scarcity of “good press” about insurers means that most jurors will come into the courtroom with a an inherent bias against your client. Your opposition will exploit this and you will need to overcome this inherent bias if you have any hope of successfully presenting your case to the jury.


Acting Technique for the Courtroom
Hon. Mark Drummond It was several years ago, about this time of year, when I had some time to kill in a mall. I wandered into one of those pop-up calendar kiosks and thumbed through a quote-of-the-day desk calendar for parents raising teens. For some reason, I remember this quote: “Teenage boys try on many faces, trying to find the face that fits them best.” What faces have you tried on in court? Have they all worked?

Voir Dire: Don't Let the Judge Cut You Out
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.


PDF Magistrate Judge Orders Jail Time for Voir Dire Question
Anthony R. McClure In a recent decision catching the attention of trial attorneys across the country, a federal magistrate judge ordered a patent lawyer to spend 48 hours in jail for asking an inappropriate question during jury selection.

Ethical Rules for Litigating in the Court of Public Opinion
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.


A Peer May Be Your Client's Worst Juror | Litigation News
Hon. Mark Drummond From high school civics and on, we have heard the phrase “a jury of your peers.” The phrase does not actually appear in the U.S. Constitution. The Magna Carta appears to be the source of the concept of being judged by your peers or equals. The concept back then, however, was that you would be judged by persons of your same social standing, status, or peerage as opposed to the crown.


PDF 31 Lıtıgatıon online Jury Instructions: A Road Map for Trial
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.


PDF Using Jury Instructions to Your Advantage
Christopher R. Hart
Much has been said and continues to be said about some of the most complicated aspects of litigating: how to prosecute or defend against class action suits, how to prepare experts in highly technical fields, how to wade through securities cases. There never will be any end to the need for advice and insights on the most complex issues of litigation.


South Carolina Clarifies Jury Instructions on Negligence
Kristine L. Roberts The Supreme Court of South Carolina has held that, under the state’s comparative negligence system, a jury may compare all forms of negligence to assess each party’s relative fault. Berberich v. Jack. In a case of first impression in the state, the court directed trial judges to instruct juries, when requested, on the definitions for heightened degrees of negligence, including recklessness, wantonness, and willfulness.


New Jersey Revamps Test for Eyewitness Identifications
Natasha A. Saggar Acknowledging “eyewitness misidentification is the leading cause of wrongful convictions across the country,” the New Jersey Supreme Court recently adopted a revised framework for assessing the admissibility of eyewitness identification evidence.


Cutting Litigation Costs Without Compromise
Olivier A. Taillieu, Mark Wolf One of the most important steps you can take to keep costs down is to develop and maintain an open line of communication with your client. Attorneys often spend hours zealously tackling an intricate problem in a case only to learn that the client had already addressed that same problem successfully in another case. The result? The attorney has demonstrated to his client that the client knows more about the law than the attorney, and the attorney ends up on the hook for a hefty bill that the client is not inclined to pay.


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PDF Riding Jury Instructions to Victory
Hon John Kane
Jurors are not incompetent. The failure of comprehension lies with us, the lawyers and judges. It is not the responsibility of jurors to divine meaning by stirring the entrails of the legal monstrosities we create. With strategically timed and sufficient instructions coupled with commonsense innovations, a jury can justly decide any case. 


Young Lawyer's Corner: Advice on Jury Instructions and
Cristina Alonso You have been asked to prepare a set of jury instructions and a verdict form for trial . . . for the first time. What do you do? Where do you start? And what does this have to do with appellate practice? Here, we offer some basic guidelines for drafting jury instructions and a verdict form, preparing for the charge conference, and preserving any error that may occur during or after the charge conference.

 Winning the Jury's Attention: Presenting Evidence from Voir Dire to Closing
Trey Cox Using the right message, presenting it in the right way, and doing so in the right amount of time to attract jurors’ attention.


 Anatomy of a Trial: A Handbook for Young Lawyers
Paul Mark Sandars Litigation theory is often compromised by the realities of an actual trial. This valuable book is written to give young trial lawyers an appreciation of the real problems encountered during jury trials, and how to effectively handle them.

Can Social Media Be Banned from Playing a Role in Our Judicial System?
Denise Zamore Barring a gag order, what's to stop a savvy defendant corporation from creating a Facebook page dedicated to proving its innocence at trial? What’s to stop a juror at that trial from accessing and posting to the corporation's Facebook page during a break, or even in a courtroom where cell phones and PDAs are allowed?


Should I Google the Jury?” and Other Ethical Considerations
Sarah Grider Cronan and Neal F. Bailen Today’s trial lawyer faces more ethical challenges than ever before. The rules of professional responsibility provide guidance in many situations, but there continue to be substantial gray areas as to appropriate behavior between lawyers and jurors within the confines of the courtroom. This leaves many lawyers struggling to find the proper balance between zealous representation and ethical conduct.

Shadow Jury
Hon. Mark Drummond How would you like to know what the jury is thinking? How would you like a shadow jury without having to pay for one? What if this shadow jury were your real jurors? “It is like having a free shadow jury out in the audience because you could tell what was happening going through the trial”.

 PDF Getting the Best Value from Trial Consultants and Jury Research
Jo Ellen Livingston, Ph.D., George Hunter, Ph.D. Zagnoli McEvoy Foley LLC  Why should you hire a person who is not a lawyer to help try your case? How can a panel of a few dozen laypeople help predict what an actual jury will do? If you are a successful lawyer, what does pretrial research bring to the table? When considering the value of jury research, these are burning questions for many lawyers today, and even more so for their clients who have to pay the bill for these services.

PDF American Bar Association Forum on the Construction Industry.
Scott D,Jill Leibold,Charlotte Wiessner,Joseph A. Battipaglia Taking a complicated construction case to a jury causes many lawyers significant heartburn. Lawyers worry about whether juries, typically composed of individuals with little to no construction experience, can follow and comprehend construction-specific issues.


Michigan Adopts New Jury-Reform Rules | Litigation News
Lindsay M. Sestile Starting this fall, Michigan litigators will face unfamiliar rules governing how they relate to the juries in the courtrooms where they practice. Specifically, new jury-reform rules adopted by the Michigan Supreme Court are designed to get jurors “truly involved, not just sitting in enforced passivity.”


Ninth Circuit Sets Limits on Breaking Jury Deadlock
Karen L. Stevenson Permitting supplemental arguments to the jury on issues identified by the jury as causing a deadlock is an impermissible intrusion on the jury’s role. In United States v. Evanston, the U.S. Court of Appeals for the Ninth Circuit overturned a guilty verdict in a criminal case because the trial judge, over defense objections, allowed this type of supplemental argument.


Building your Case for the Jury
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. Whether that is true or not, we have to act as though it is. And we use several tools and techniques that we believe help us to do that.


Federal Spoliation Rule Moves Forward
Charles S. Fax  
In two recent columns, I addressed the proliferation of conflicting and inconsistent local court rules throughout the federal system and the consequent burdens imposed on counsel litigating in multiple jurisdictions.


 PDF Getting the Best Value from Trial Consultants and Jury Research
Jo Ellen Livingston, Ph.D., George Hunter, Ph.D. Zagnoli McEvoy Foley LLC  Why should you hire a person who is not a lawyer to help try your case? How can a panel of a few dozen laypeople help predict what an actual jury will do? If you are a successful lawyer, what does pretrial research bring to the table? When considering the value of jury research, these are burning questions for many lawyers today, and even more so for their clients who have to pay the bill for these services.


Michigan Adopts New Jury-Reform Rules | Litigation News
Lindsay M. Sestile Starting this fall, Michigan litigators will face unfamiliar rules governing how they relate to the juries in the courtrooms where they practice. Specifically, new jury-reform rules adopted by the Michigan Supreme Court are designed to get jurors “truly involved, not just sitting in enforced passivity.”


Ninth Circuit Sets Limits on Breaking Jury Deadlock
Karen L. Stevenson Permitting supplemental arguments to the jury on issues identified by the jury as causing a deadlock is an impermissible intrusion on the jury’s role. In United States v. Evanston, the U.S. Court of Appeals for the Ninth Circuit overturned a guilty verdict in a criminal case because the trial judge, over defense objections, allowed this type of supplemental argument.


Juries
Litigation published four times a year, is the preeminent journal in the field. The publication offers practical yet lively information on common problems and interests for the lawyers who try cases and the judges who decide them.