Should You Quiz Jurors Whether They Watch Law and Order?

The Wall Street Journal recently mentioned a UC Irvine doctoral student who “worries,” in a forthcoming academic paper, that realistic police procedural dramas (i.e., cop shows) significantly impact potential jurors.

Specifically, he’s “concerned the show’s influence may be leaving jurors with a distorted view of how investigations are conducted and the judicial system works. The world of Law & Order,† he says, is one in which prosecutors and police give off a soft glow of righteousness, while public defenders and defense lawyers toil under a harsh light.”

The WSJ quoted from a draft of the paper:

“The police and prosecutors in this view are portrayed as the “good guys” keeping the people safe from a dangerous world of criminals, and their tactics, regardless of how draconian and unconstitutional they may be, are necessary to get the job done effectively and expeditiously. On the other hand defense lawyers, the occasional by-the-book ADA, and even the Constitution are portrayed as impediments to justice. They obfuscate and distract from the correct outcome – a guilty verdict. The show suggests that if a suspect isn’t guilty, he or she isn’t brought to trial. The cops end up with the right person.”

This struck me as quite a mouthful, particularly when I read that the author “concedes that he doesn’t have empirical evidence to support his suspicion.” Aren’t academic papers supposed to rely on empirical evidence? (Unless they appear in the Journal of Speculative Philosophy?) I’m sure the paper, when it appears in an upcoming issue of the Law and Psychology Review (where it is indeed destined), will someday be cited as authority why medical malpractice plaintiffs should routinely challenge potential jurors who grew up watching Marcus Welby.

Snarky jokes aside, and recognizing that neither the doctoral student nor I are truly “experts” on this, I solicited input from jury consultant and Juryology blogger Rich Matthews. It turns out Rich had seen the paper and didn’t think too much of it, either. He described the author’s concern as both “much ado about nothing new” and the exact opposite of how it really works. He said, “It has always been the case that people have a psychological need to believe that police and prosecutors conduct their work competently and honestly. Thus TV didn’t create that mindset but rather plays to it in the form of police and law enforcement shows since the dawn of television.”

Makes sense. But even if the TV -show-shaping-our-views hypothesis is sketchy, that doesn’t mean it wouldn’t be useful to know what kind of TV prospective jurors watch or don’t watch. I’m not suggesting this always makes good voir dire, but, as Rich points out, jury experts are interested in “what pre-sets citizens have when they come into court, and how they play into one’s specific case.” If the TV shows we watch reflect our need to believe our “doctors are caring and unfailingly accurate,” couldn’t that indeed be useful in a malpractice or medical device case? If we watch a police procedural because we have a “need to believe” our police officers, would knowing your jurors are rabid Law & Order fans be interesting in a case where the outcome may hinge on an officer’s testimony and believability?

Or not. Feeling in my bones that cold dread of Kierkegaardian ambivalence, I consulted Professor McElhaney’s views on voir dire. In a chapter called “Picking a Jury” in his Trial Notebook (Third ed. 1994), he doesn’t address whether a prospective juror’s TV proclivities are necessarily useful, but he does reaffirm that, among the uses of voir dire, you want to “figure out whom you are talking to.” (Id. at p. 123.) After all, he says:

“You would never dream of giving a Law Day speech without knowing whether the audience was a political reform organization, a group of retired workers, or a class of high school students. One of the most important things you can do in jury selection is to study the jury. Find out what the jurors like and don’t like.” (Id.)

The upshot, I guess, is that, if you’re interested at all in what jurors watch, it’s not because you’re worried their views have been shaped by those shows, but because what they watch may reflect how deeply they hold certain beliefs in the first place. I continue to have my doubts.

†Brief aside: Wasn’t Law & Order just more classic back when there was just one show and Chris Noth and Paul Sorvino were in the cast?

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Why It’s Critical To Get A Stipulation To Go “Off The Record” In Deposition

When Alec Baldwin retires we’ll look back over his career, appreciate his different “periods,” and argue over when he shined most brightly. I’ll be torn between the current Alec Baldwin, a mischevious clown with serious acting and comedy chops, and an earlier, completely different Baldwin, handsome, hardened, narcissistic–kind of an asshole, really–that we see in Glengarry Glen Ross, The Juror, and Malice, from which this clip is pulled. I personally find his monologue in the opening minutes of Glengarry Glen Ross to be the most compelling (“Coffee is for closers!”), though he’s damn funny on 30 Rock.

This excerpt, though, is useful because it illustrates two points when defending a witness at deposition. First, if you can’t control your client sufficiently to prevent him or her from saying “I am God” at the wrong time, then look into another line of work. More technically, though, the clip illustrates the importance of securing a stipulation among all counsel to go “off the record,” meaning that the stenographer will no longer record testimony or colloquy. In the movie, one of the lawyers tells the reporter to stop reporting, and that seems sufficient. And I’ve found it usually is sufficient for one of the attorneys to say “off the record” or something similar. But, technically, an actual stipulation is required. See, Schwarzer, Tashima & Wagstaffe, Cal. Prac. Guid: Fed. Civ. Pro. Before Trial (The Rutter Group 2013), §11:1567, p.11-208. If you think you’re off the record, make sure the reporter’s hands aren’t moving, or your client’s declaration of divinity, or other gaffe, could become a bone of contention in the case.

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“I Am Shiva!”

[youtube]Michael Clayton was an under-appreciated legal thriller. I will admit it took me multiple viewings to fully appreciate it. But I’ve really come around. Tom Wilkinson, George Clooney and, especially, Tilda Swinton do a fine job, and it’s written and directed by Tony Gilroy. If you work in BigLaw, or you represent giant corporate clients, or, like me, people often mistake you for George Clooney, parts of the film will definitely ring true.
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Have You Sat Before This Judge Before?

Remember to let the judge sit down before you do.
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The Hyperbole of Hyperbole

I wrote last about credibility in the context of preserving one’s reputation for honesty. I doubt many lawyers will argue with the importance of reputation. However, at a more granular level, there are more subtle ways of losing credibility than being untruthful with the opposition, a judge or your client. I’m thinking here about the tendency in our profession to exaggerate or overuse hyperbole in correspondence, briefs or argument.

Yes, “this bag weighs a ton” is more colorful, immediate and powerful, than merely, “this bag is heavy.” But it’s a slippery slope. As I write this, however, it occurs to me that the risk may actually be less about preserving credibility, and more about simply being a better advocate. The goal in our writing and argument should be less about telling a judge, jury or opposition that a course of conduct was malicious or–another good one–heinous. Our goal should be to drive the point home using the facts themselves. Show, don’t tell, as I hear in my sleep from all those fiction workshops. Describe the facts which lead us to conclude on our own that the conduct was malicious or heinous. If done properly, you can leave out the hyperbole and adjectives entirely.*

Back to the heavy bag, saying it “weighed a ton” is more powerful than simply “heavy,” but “the bag weighed 300 lbs.” or “plaintiff could not lift the bag without assistance” is more compelling still. We trust this statement, not because someone else has concluded for us that the bag was “heavy” (a relative term), but because most of us can infer from our own weight that 300 lbs. is heavy. Describe the facts precisely and well; if the bag truly was heavy, we’ll know it.

I know when I receive a letter or a brief with hyperbole or exaggeration my first thought is not, “Wow, we’re in trouble.” Typically the opposite. This is because I know that if my client and I have something to worry about there won’t be any need to cloak the facts in fiery adjectives or other nonesense. Again, if the facts are good or bad enough, they’ll speak for themselves.

I suspect it’s because judges are so inundated with exaggeration on a daily basis that they often seem at their wits-end during law and motion calendar. There’s only so much of it one can take without growing tired and cynical. I’ve never sat as a judge, but I sometimes imagine what they must be thinking, in their black robes presiding over lawyers bickering over interrogatory responses like little children: “Somebody is really paying these people several hundred dollars an hour for this?”

Exaggeration in the courtroom is not dissimilar from crying wolf. The first time we hear a lawyer suggest a defendant was calculating or heartless it might carry some impact. But, like the gun in the first scene of a play, hyperbole and adjectives generate an expectation. If the lawyer doesn’t deliver the goods by the end of the show, the audience is going to want a refund. And they’ll deserve it.

*An exception being adjectives that are specifically drawn from applicable jury instructions. If the instruction requires the jury to conclude conduct was “malicious” to impose punitive damages, then a lawyer should use the term itself. But don’t just conclude the conduct was “malicious,” describe the conduct in such a way, with facts, that no sane person could reach any other conclusion.

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Et tu, Brute

You don’t want to “cross” Omar. The fun begins at about 1:22.

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“Officer On Deck!” Great Cross/Great Re-Direct

In this clip from A Few Good Men, two Marines are on trial for a murder on their training base. The Marines’ defense is that they were ordered by officers to give the decedent, a fellow Marine, a “Code Red,” which is a violent training “tool” used to bring errant Marines in line. The decedent was killed during the performance of the Code Red.

The prosecution (played here by Kevin Bacon) wants to poke holes in the whole notion of a Code Red. When another Marine from the same unit is on the stand, Bacon cross-examines him with two books, The Marine Outline for Recruit Training, and the Standard Operating Procedure applicable to his unit. Bacon elicits admissions that the term Code Red does not appear anywhere in either manual, thus making it seem like something the defense has cooked up or exaggerated.

The defense (played by Tom Cruise) deftly resuscitates his witness by using the same Standard Operating Procedure and asking the witness to locate where in the manual it explains where the mess hall is located. Of course the manual makes no reference to the mess hall, either, crisply illustrating the fallacy behind the argument that a Code Red must be a fiction if not officially recognized in the Marine training manuals.

Oh, and sorry if this contained a spoiler. The movie has only been out for like 25 years.

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Why It’s Important to Prepare Your Witness for Cross-Examination

This excerpt from Atticus Finch’s cross-examination of Mayella in To Kill A Mockingbird highlights why you might want to prepare your witness for a potentially challenging cross-examination.


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