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?

Living through trial. The only thing most of us think about is winning. (Unless, like me, you get that 11 pm craving for carne asada burritos con guacamole, then you think about that, too.) After the verdict, win or lose, the last thing everybody wants is to go back through it and take stock of what happened, what went well or went poor and how we can do better next time.

But there is real wisdom, once the dust truly settles, in going back over everything to ponder, “What did we learn from this?” For institutional clients of every size, trials are a huge investment of time, money and resources. It makes a lot of sense for them, ideally in conjunction with their counsel, to do a trial postmortem. This not only helps prevent future “situations” requiring litigation but, if cases do arise in the future, it enhances the chances of success. Astute lawyers recognize the value and opportunities of this process and collaborate with their clients to do a comprehensive postmortem, possibly for free! Even if the client shows no interest, much can still be gained if only the members of the trial team come together for a postmortem session.

A generous article on this topic, “Trial ‘After Action Reviews,'” appeared in the August, 2013 issue of For the Defense. The authors, Milwaukee lawyers Ric Gass and Michael B. Brennan, point out that “Army generals as far back as Caesar in his ‘Commentaries on the Gallic War’ have learned strategic and tactical lessons through after action reports.” (Id. at 29) The article is sweeping in its scope. Among the valuable points made by the authors was the following:

“Crucial to the success of an after action review is, to use the military jargon, ‘leaving your rank at the door.’ If you are the lead counsel, you need to be willing to listen and to learn from the observations of others on your team. You were probably too busy while doing that crucial cross-examination to take in everything else in the courtroom, such as reactions of jurors, or of the judge or opposing counsel. But your co-counsel, your paralegal, or your jury consultant did watch for those reactions, and you need to hear what they saw.” (Id.)

The authors suggest some topics for review during the postmortem, including:

• Jury Research: “Did the jury research accurately predict the attitudes and reactions of the jurors and the ultimate result on liability and damages?” (Id.)
• Opening: “What worked well for us? What worked well for opposing counsel?” (Id.)
• Direct Examinations: “Did a certain witness’s testimony connect with the jury, and if so, why?” (Id.)
• Cross-Examinations: “Was the tone of the questions too harsh or too lenient? . . . How many of the admissions made on cross-examination made it into the closing argument?” (Id. at 30.)
• Expert Witnesses: “Would we use this expert again, and more importantly, why?” (Id.)
• Closings: “What worked well for each party, and why?” (Id.)

Finally, the authors point out that:

“Being a trial lawyer is a lifelong learning experience. . . . If you have had any kind of trial, but especially a major trial, you need to appreciate it for all the experience it brings and to wring every last piece of learning that you can from the experience. . . . [Y]ou need to figure out how to carry that understanding and the techniques that went right to your next trial.” (Id.)

I know first-hand how much clients appreciate it if, after the trial, you offer to travel to their offices and help your in-house counterpart prepare and present a postmortem, with the specific goal of avoiding similar situations in the future. They really, really appreciate it when you don’t charge them for the experience. If your trial counsel won’t do this for you, ask them why not. Then remember to call me.

I’ve written before about the wisdom, in the context of a jury trial, of obtaining pretrial orders by the judge excluding or significantly limiting certain items of evidence you anticipate will be offered by your opponent. The typical vehicle for obtaining this relief in American courts is by filing a motion in limine. This term is derived from Latin, and means “at the threshold.”

Why do courts entertain such motions? If one party attempts to introduce objectionable evidence, whether by an examination question or offering an exhibit, in front of the jury, it may be impossible to “unring the bell,” or make the event 100% harmless, for two reasons.

First, if the question or exhibit is damaging enough that the jury gets the gist of its import before the judge  sustains your objection, the practical effect is little different than if the evidence had come in without objection. (Worse, in some ways, if you recognize that the objection itself may “wake up” jurors and alert them that what they’re about to hear–or not hear–is important.)

The second, more subtle reason, which I’ve previously described, is the assumption on the part of jurors whenever they hear you object, particularly if it is sustained, that you are trying to hide something from them–probably the truth. As I’ve said, this can garner juror resentment.

Motions in limine are great fun to write if you are an associate. I say this only partly in jest because they actually can be both interesting and game-changing, if done well. Plus they help young lawyers learn to use and argue the rules of evidence in a way you never learn them in law school or when studying for the bar.

Now, if we take this kind of pretrial strategic thinking to a higher level, there are even more subtle considerations to consider and decisions to decide. One involves comparing a motion in limine with a different kind of document called a trial brief. A trial brief is often a concise memorandum of points and authorities that delineate an important narrow issue and identify and apply authorities to persuade (under the guise of education) the court to adopt your favored position. It is also common for parties to file a single trial brief, which provides the court with a roadmap of all of the issues, the expected evidence, and how they should be decided. I’m referring in this post to the kind of brief that addresses only a discrete issue or cluster of issues.

In general, motions in limine focus on evidentiary issues and trial briefs on issues of law, such as how the jury should ultimately be instructed. But the difference isn’t always clear. For example, if you expect a massive argument over a specific jury instruction, it might be appropriate to separately file a trial brief to persuade the judge that only your instruction is appropriate. But this debate can also give rise to evidentiary issues. If certain areas of inquiry would be irrelevant or inappropriate if the judge ultimately sides with the position in your trial brief, it may be wise to also file a motion in limine to urge the court to limit potential unwanted or damaging evidence.

Finally, the timing of trial briefs is another consideration. They can be filed before trial, along with any motions in limine, or you can prepare and hold–do not file–a “pocket” brief  until the issue is “ripe” for adjudication. When, in the context of an argument, the judge asks, “Counsel, do you have any authority on that?” “As a matter of fact,” you say, “we do!”

Three additional points about motions in limine. First, lawyers have greatly overused them; some judges consider such motions to be an irritant. Be wary of this and save them for issues that really merit advance consideration by the judge. Then brief these issues well–don’t just assume because you raise an issue and cite an evidence code section that you’ll prevail. It’s vastly better to select a very few key evidence issues and brief each thoroughly, than to file a motion on every anticipated shard of evidence. If the issue doesn’t merit serious briefing, it probably doesn’t merit a motion.

Second, it is an absolute waste of everybody’s time to file “obvious” motions, which simply repeat well-established evidence rules. For example, most trial judges and lawyers know about the prohibition of evidence of insurance coverage. Why waste paper and time making a motion on such an obvious point.

Third, most jurisdictions require parties to “meet and confer” before filing motions in limine to see if the issue can be resolved among the lawyers. Even if you are in a jurisdiction that does not have such a rule, there is no reason not to meet and confer and try to resolve the issue before you spend your client’s money needlessly.

Both motions in limine and trial briefs can significantly impact the outcome of a trial. By resolving evidentiary issues that the jury never needs to know about, or educating the judge about how she should rule on important legal issues, these documents can effectively shape how a case is tried. Don’t be afraid to use these tools, but use them wisely and strategically.

It is no accident that Thomas Mauet’s Fundamentals of Trial Techniques is the best regarded textbook for trial advocacy, at least among professors and adjunct professors who use a text at all. I kept a fair number of my law school textbooks, but the only one I’ve consulted more than once in 20 years of practice is Mauet’s Fundamentals.

In his chapter on trial strategy, Professor Mauet introduces us to some basic psychological principles which come into play when presenting evidence and argument to jurors. I’ll highlight five good ones here.

1.  Jurors are primarily affective, not cognitive, thinkers. This is probably a huge generalization, but a useful one. Mauet writes: “People have two significantly different decision-making styles. Most people are primarily affective, not cognitive, thinkers. Affective persons are emotional, creative, impulsive, symbol oriented, selective perceivers of information and base decisions largely on previously held attitudes about people and events.” (Id. at 376.)†

2.  Jurors use attitudes to filter information and reach decisions they believe are sensible and fair. We rely on attitudes, values and believes “to filter conflicting information. Our attitudes subconsciously filter information by accepting and remembering consistent information, by ignoring, minimizing, or rejecting inconsistent information, and by distorting inconsistent information to make it consistent with our attitudes.” (Id. at 377.)

3.  Jurors reach decisions quickly, base them on relatively little information, and then resist changing their minds. Just when you thought a jury trial was the perfect forum to resolve a technically complex dispute, such as a patent fight or generally accepted principles of accounting, it turns out that “[j]urors cannot absorb, understand, and retain most of the information they receive during a trial, particularly if most of that information comes through oral testimony. Sensory overload occurs quickly. To relieve the internal stress this problem causes, jurors reach decisions quickly by basing them on relatively little information that their attitudes have subconsciously filtered and received.” (Id. at 377.)

The key for a trial lawyer, then, is to identify the jurors’ “psychological anchors” and “state them in a short, attractive, memorable way that is consistent with jurors’ attitudes and beliefs, and incorporate them into each stage of the trial.” (Id. at 377-78.) For more on this, see my discussions of the Rules of the Road here. This is also consistent with the underpinnings of the Reptile strategy, discussed here.

Why do jurors resist changing their minds? Just as the rush to judgment is fueled by the desire to reduce internal stress caused by sensory overload, the steadfast adherence to their initial decision also helps reduce internal stress. “[I]nconsistent information causes cognitive dissonance–internal conflict and stress. Jurors subconsciously solve this problem by rejecting new information.” (Id. at 378.)

4.  Jury decision-making is influenced by the personality characteristics of individual jurors and how they will interact as a group. Mauet describes three types of jurors: leaders, followers and loners. Recognizing the leaders is key. “Opinion leaders usually have a higher education level and have positions of authority or expertise in their work. Leaders may be authoritarian personalities and often dominate jury discussions; the three most vocal jurors typically control more than 50 percent of the deliberation discussion. Particularly in longer trials, jurors form subgroups around opinion leaders.” (Id.)

Followers  . . . well, they follow the leaders. But loners are worth worrying about. “Loners . . . have no particular interest in either interacting or agreeing with other jurors. Loners who seem withdrawn because of recent traumatic experiences frequently become punitive jurors.” (Id.) Yikes!

5.  Jurors are influenced by medium variables. The message here is that jurors absorb what they see exponentially better than what they simply hear. Mauet writes, “When the medium is oral testimony, clear, simple common English with a smooth, confident delivery and reinforcing kinesic and paralinguistic cues significantly affect how jurors receive, accept, and retain the communication. . . Since communication is approximately 60 percent kinetic (appearance, gestures, body movement), 30 percent paralinguistic (voice inflection), and only 10 percent word content, trial lawyers must learn to read the kinesic and paralinguistic cues that jurors send during voir dire, witnesses send while testifying, and lawyers send throughout a trial.” (Id. at 380.)

Visual exhibits are hugely important. “Visual exhibits also have extraordinary retention properties. People retain about 85 percent of what they learn visually; retention of aural information is only about 10 percent. Hence, exhibits that pass the ‘billboard test’ — clear, immediate, and attractive — have an extraordinary impact on jurors.” (Id.)

With these psychological principles in mind, we can see why voir dire is so important, as is the packaging of messages, particularly anything that is complex or likely to trigger jurors’ long and closely held attitudes and beliefs. Good luck.

†All citations are to the Third Edition.

It’s probably my mind playing tricks on me, but I have a foggy memory, from younger days, of removing my belt and shoes in order to forge through the security screening apparatus and into the United States District Courthouse for the Central District of California, for the sole purpose of witnessing a senior lawyer from my law firm trying an insurance bad faith case against Mike Piuze, who was something of a legend around Southern California courts at that time.

Once I got past the screening and the nonsense and made my way up to the courtroom, I entered just as my colleague was finishing a cross-examination of one of Piuze’s witnesses. It wasn’t this examination that captivated me–I actually have no memory of it–but rather seeing Piuze sitting at counsel table, alone, with nothing in front or around him but a single yellow legal pad.

As I say, my memory might be fooling with me, but the picture I carried away from that visit to the courthouse was of Piuze in trial against some behemoth insurance company armed only with his brain, a notepad, and his ego.

Well, whether I’m accurate in my recollection about what Michael Piuze takes with him to trial, most of the rest of us mere mortals generally bring along something called a trial notebook. I know that I’ve assembled several over the years, many for senior partners and a few for myself. It seems everyone includes a little something different in their trial notebook. For this post, however, I thought I’d consult that sage don of all things trial-related, Professor James McElhaney.

Ironically enough, the first chapter of McElhaney’s Trial Notebook is devoted entirely to the topic of assembling and using a, well . . . trial notebook. Clearly addressing us at what he presumes to be the brisk and hazy dawn of our careers, McElhaney writes:

“There are many rewards to using the trial notebook system. First, and probably most important, is that it helps you find things during trial, from particular passages in a deposition to the right response to your opponent’s objections. . . . Second, if you are a junior in a firm, the trial notebook can help you in two ways: it can let a senior review your work in advance of trial, and it will impress your senior that you know what you are doing.
Third, if you prepare a good trial notebook, it is much easier for a colleague to take over if anything should keep you from trying the case.” (Id. at 4-5.)

Fair enough. But what should you include in your trial notebook? Here’s what McElhaney suggests:

1. A Table of Contents and Index.

2. Analysis of the Case. “Here is the place for all sorts of notes, whether formal or informal, that go to make up your battle plan–from ideas about preliminary motions and jury selection to thoughts about final argument and requests for instructions.” (Id. at 6.)

3. Analysis of the Opponent’s Case.

4. Proof Checklist for the Case.

5. Jury Selection. “What you do during voir dire is a subject all to itself. But whether you get to ask the veniremen questions or it is all done by the judge, you cannot tell the players without a scorecard. For this you need a chart, a group of squares assembled like a map of the way the panel of prospective jurors is arranged, in which to write their names and make some notes.” (Id. at 7.)

6. Opening Statement.

7. Stipulations and Pretrial Order.

8. Witnesses. This should not only include the witnesses’ names, addresses, multiple telephone numbers and an indication whether they have been subpoenaed, but also “a short paragraph (just one or two sentences) explaining why this witness is being called to testify: just what it is you expect to prove with this person.” (Id. at 9.)

9. Examination Outline(s) for Witnesses.

10. Proof Checklist for Witnesses.

11. Deposition Index.

12. Documents and Exhibits. Here, McElhaney envisions both a list of documents and the documents themselves. Unless your case concerns a fender-bender or a simple breach of contract or debt owed, chances are you will want to break down the witness examination outlines, deposition index(s) and document and exhibits into their own separate notebooks. Experiment until you find what works right for you. One thing I’ve found really useful, though, is to include a page for every important exhibit on which you anticipate your opponent will make evidentiary objections; here you write an argument or two, or case or code citations to answer each objection. Much easier than thinking on your feet, though you have to do that, too.

13. Evidence and Procedure Memoranda. (See the last sentence of the last paragraph–unlike McElhaney, I don’t give this its own place in the notebook, but try to tie the anticipated objections and responses to particular exhibits or even witnesses. Again, find what works for you.)

14. Final Argument.

15. Motions and Requests for Instructions.

Again, you will want to experiment with what kind of trial notebook fits your style. Big cases, tried by teams of big firm litigators, spawn multitudes of notebooks, each individually devoted to a particular motion, or witness. But even in these circumstances, I think it is helpful to have a single, core trial notebook–a space where you bring it all together, and develop (and modify) themes and strategies. If you don’t want to call it a trial notebook, call it a playbook. But, unless you’re Michael Piuze, you’ll probably do better at counsel table armed with something more than a legal pad.

Again and again the message I hear from accomplished trial lawyers is that preparation is the absolute key to success in the courtroom. I previously wrote a post endorsing what I will term a “guerrilla” mock trial exercise as a valuable component of this preparation.

Why “guerrilla”? While firms across the country will gladly perform Cadillac-quality jury research, using state-of-the-art facilities and carefully selected mock jurors, this requires a level of investment that is far outside the budget for most parties facing a trial. A “guerrilla” mock trial, in which  you invite office staff, friends or even relatives to act as jurors, and use whatever space is available, can provide a reasonably priced alternative to a full-blown mock trial, rendering the unquestionably useful exercise available to parties that aren’t Fortune 500 companies. Just be sure to validate the jurors’ parking and buy them lunch.

In a perfect world, we would have the opportunity to present every aspect of the case to multiple sets of mock jurors before the big day. Since we live in the real world, however, I’ll focus on one aspect of mock trial presentation that I’ve personally found useful: preparation of one or two key witnesses for their cross-examination. In fact, doing direct and mock cross-examinations, in front of mock jurors, can be an excellent way to prepare a witness who is nervous, inexperienced at testifying or otherwise expected to struggle on the stand.

What is involved? First, I recommend running through several mock direct and/or cross-examination sessions alone, with no jurors present. It is hoped these preliminary exercises will smooth out and/or help identify particularly rough areas of examination. When the jurors are present, both counsel and the witness should treat the exercise as a dress rehearsal, taken seriously, without interruption.

It can be useful to provide the mock jurors with questionnaires following the examination, asking specific questions. For example, if the witness is expected to be presented with potentially damaging impeachment evidence during her cross-examination, it could make sense to ask in the questionnaire something like: “Did the evidence that _________ make you question the witness’s credibility?”Alternatively, if you are presenting a direct examination of a witness, and there is concern about the witness’s ability to provide a clear explanation, the questionnaire could ask: “Was the witness’s explanation of ______________ completely clear? Was it confusing? If so, what made it confusing?”

Another idea is to combine a mock opening statement presentation with examination of one or two witnesses. Jury consultants often present mock juries with “staged” questionnaires, to see how jurors receive and process new information. For example, jurors can be asked to complete a questionnaire following the mock opening statement. Then, they can be asked to complete an additional questionnaire following the mock direct and/or cross-examinations. Learning how the mock jurors process new information in the context of the case can help counsel develop a strategy for dealing with potentially damaging evidence–one of the great benefits of jury research.

It is a good idea to videotape the examination. This makes it possible to spend time after the mock trial reviewing the witness’s posture, demeanor or other issues both alone and, if necessary, with the witness.

A couple of additional thoughts. First, it is a good idea to reinforce the notion that the mock trial and any of the information discussed during the mock trial, should be treated as confidential. Remember, too, that there is no attorney-client privilege covering information conveyed to mock jurors, so take care not to inadvertently waive the privilege. Second, if the budget allows for a jury consultant to participate in the mock trial, this can be hugely helpful. Consultants have extensive training, and have typically participated in many, many mock trials and/or other focus group work and will bring an entirely different dimension to the analysis.

So, next time you’re getting ready for trial, think about incorporating a “guerrilla” mock trial as part of your preparation.

Sun Tsu wrote that “Every battle is won before it’s ever fought.”

This adage is never more true than in the world of civil and criminal litigation. I say this because our strategic decisions and actions before the jury is impaneled and opening statements begin often play a bigger role in the outcome of a case than any single event that occurs during the trial itself.

I have previously written about using pretrial motions in limine to exclude or limit evidence. In this post I want to talk about severance and bifurcation as a sound strategy under certain circumstances.

First, a brief explanation of the procedure. Severance or bifucation refers to an order by the judge, in cases involving multiple issues or claims, that separate trials will be held of the different issues. Severance in the Federal courts is governed by Rule 42 of the Federal Rule of Civil Procedure (FRCP). Rule 42(b) provides:

“(b) Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.”

In my civil practice, defendants sometimes seek bifurcation–or separate trials–of the issues of liability and damages. The wisdom of this is apparent if we consider a personal injury case involving  unusually horrific damages. If the defendant is successful in obtaining bifurcation of liability from damages, it may be possible to exclude evidence of the horrific damages during the trial of the liability phase. After all, damages evidence is irrelevant to whether the defendant caused the plaintiff’s injuries. This can be huge if evidence of the plaintiff’s horrific damages will engender extreme sympathy which might cause the jury to look beyond the liability evidence and return a verdict fueled by emotion.

Another example could be if there is a unique affirmative defense that could be tried separately and, if successful, will greatly shorten the duration (and attendant costs) of the trial. If, for example, the defendant believes it has a strong statute of limitations defense which relies on the testimony of just a few witnesses, the judge can order this issue be tried first and separately from all other issues. If the defense prevails, it saves the court and the parties from the time and expense of trying the entire case only to reach the same outcome.

There are other situations in which separate trials could powerfully impact the outcome of the case. I recently read the account of one of Edward Bennett Williams’s famous trials, defending former U.S. Treasury Secretary John B. Connally. Connally was accused of accepting two $5,000 payments from a lobbyist for the Associated Milk Producers “as a thank-you for helping bring about higher price supports for milk after the Secretary of Agriculture had initially refused to raise them.” Emily Couric, The Trial Lawyers (St. Martin’s Press, 1988) at 331. In addition to accepting the “gratuities,” Connally was also charged with conspiring to obstruct justice and with perjury in connection with Connally’s conduct  during the government’s investigation of the payments.

Among the strategies employed by Williams was “a decision to narrow the courtroom debate. By focusing on a single issue, [he] . . . reasoned, he could more easily prove his client’s innocence.” Id. at 335. Williams thus moved and persuaded the court to sever the counts related to taking the $10,000 in gratuities from the counts relating to obstruction of justice and perjury. Williams argued that “if the government could indict you for perjury for denying the thing that they were accusing you of, in every case they could call the accused before the grand jury, and when he denied that he committed the offense, they just add perjury counts.” Id. at 338. The court agreed and granted the motion for severance.

The net effect was to preclude the prosecution from even telling the jury about the obstruction and perjury charges. When Williams ultimately won the trial of the gratuity counts against Connally, the “defeated” prosecution dismissed the remaining counts for obstruction of justice and perjury. Years later, the prosecutor, Frank Tuerkheimer, commented that:

“The most result-oriented thing Williams did in the Connally case . . . was the pretrial motion to sever the counts. It was a major tactical win with tremendous consequences for the outcome.” Id. at 338.

A motion to bifurcate is not appropriate in every case. In fact, it’s probably not appropriate in most cases. But it is a strategy to at least consider, particularly if a successful motion can create a huge tactical advantage such as it did for Williams and his client.

What are we talking about? Let’s say you ask a witness something he doesn’t want to admit, such as a doctor who doesn’t want to admit he elected not to perform a useful diagnostic procedure (and he probably should have). So, instead of agreeing, “No, you’re right. I did not perform a spinal tap on the patient,” the witness launches into the following:

“I’m afraid you don’t understand the distinct risk involved in an invasive diagnostic procedure such as a lumbar puncture or spinal tap, as it is called. In addition to considerable expense and pain, there is a real possibility of permanent neurological injury.” (Id.)

Blah. Blah. Blah.

McElhaney offers these suggestions to deftly maintain control when you come up against a witness who evades, changes the subject or answers a different question.

Simply Re-Ask The Question Verbatim

This is especially powerful if the members of the jury have listened closely and it is a simple question, devoid of ambiguity. They, too, are thinking “Speaking zie English?” and losing respect for the witness minute-by-minute.

Re-Ask The Question In A Way That Demonstrates Your Witness Is Behaving Weasel-Like

Going back to the above example. If the original question, which drew the evasive response was: “Doctor, did do a spinal tap on the patient?” it can be effective, when re-asking the question, to phrase it as follows:

“Pardon me, Doctor, does that mean you didn’t do the spinal tap on Mr. Murphy?” (Id. at 125.)

This has the double benefit of establishing, not only that the doctor did not perform the test, but also that he was being evasive.

Tell The Witness You’re Re-Asking The Question

This is perhaps best used when the witness has twice tried to evade the question or answer a different one. On the third try, it should go something like this:

“Doctor, we’re talking now about what testing you performed on your patient, Mr. Murphy. I’ll ask you again, you didn’t perform a spinal tap on Mr. Murphy, did you?”

The good professor also suggests (1) you keep your questions on the short side, since longer questions, with more qualifiers, create more opportunities to subtly disagree or qualify an answer; and (2) try to adhere to the rule against asking open-ended questions, since you’re opening the door and basically asking the witness to assume control and talk about whatever he wants. (Id. at 126.)

“Some people cling to an old-fashioned, post-Victorian belief that gestures are inappropriate for public speaking. Law students and attorneys are often told to place their hands on the lectern or at their sides, because gestures distract the listener.” This observation comes from Brian Johnson and Marsha Hunter, in their recent book, The Articulate Attorney: Public Speaking for Lawyers (at p. 25).

I know I’ve received conflicting advice on this topic. And I’ve been on the receiving end of speeches in which the speaker gestured so freely and wildly that it was distracting and he came across like a crackpot. On the other hand, a speaker who remains so unnaturally still and wooden appears to lack both passion and conviction and, in most instances, will utterly fail to engage the audience.

Assuming you want to engage your audience, whether it is a jury deciding your client’s case, a panel of appellate justices, or a room full of potential clients, it’s a good idea, then, to make an earnest effort to not only use gestures, but to use them effectively. Lucky for us, Johnson and Hunter’s new book offers some valuable guidance in a section entitled “What Do You Do With Your Hands?”

First, they point out that “[g]esturing is not emotional or theatrical, but logical.” Id. at 27. “Gestures suit, or fit, the words being spoken, and the words logically fit the actions of our hands.”  Id. To achieve this logic, they advocate careful formulation of the first sentence of your speech. Even if you improvise much of the rest, it is a good idea to choose and practice the words with which you will begin, then practice fitting gestures to these words until you settle upon those that are most suitable. This allows you to “jump-start” the style of gesturing you will employ for the balance of the speech. As Johnson and Hunter write:

“At the very beginning of a presentation, the instinct to gesture can be as dead as a car battery at twenty below zero, frozen by self-consciousness, anxiety, or the erroneous belief that gestures are distracting. To jump-start your gestures, think of your brain as the energy source. Connect the metaphorical jumper cables of conscious thought to your instinct to gesture and turn the key. Deliberately gesture at the beginning, and suit the action to the word. Make sure your gesture engine is running.” Id. at 28.

Johnson and Hunter also advocate a style of gesturing that uses large gestures, involving the entire arm, which “move or flow through an area in front of the body called the ‘zone of gesture.’ This zone is a large space approximately two feet tall by four feet wide. It extends vertically from the waist to the nose.” Id. at 29. These larger, whole limb, gestures “avoid a common pitfall of nervous speakers: gestures with just wrists or forearms.” Id. at 31.

Finally, they address the question of what to do with your hands when you are not gesturing. Rather than the awkward crotch-blocking “fig leaf” position, in which the arms are fully extended, or the frigid, white-knuckled gripping of the lectern, Johnson and Hunter suggest we use what they call the “ready position.” Hands are “loosely touching at waist height. Hands and forearms are energized and ready to go, not pressed against the abdomen. The position is loose, not tight. A little bit of space separates the forearms from the abdomen.” Id. at 33. A principal advantage of this “ready position” is that, when you are not actively and intentionally gesturing, your hands become “invisible to most observers.” Id. at 35.

If none of this sounds particularly revolutionary, that’s probably because it’s not. As noted by Johnson and Hunter, that marginally famous writer Bill Shakespeare, speaking through the title character in Hamlet, instructed the players to “Suit the action to the word, the word to the action.” Id. at 27. Makes sense, doesn’t it?

I’ve previously written here about the Reptile litigation strategy, and here about how to prepare a witness for a Reptile deposition. In this post, I want to explore how to challenge the Reptile strategy using legal principles. Credit for explaining these strategies goes to Columbia, South Carolina lawyer David Marshall, who wrote about the Reptile strategy in the April, 2013 issue of For the Defense.

According to Marshall, “Every jurisdiction recognizes some version of the golden rule, which disallows any argument asking jurors to put themselves in the shoes of a party.” Id. at 68. The prohibition is premised on a view that such arguments are designed to destroy juror impartiality and encourage jurors to decide a case based on personal interest and bias.

Marshall refers to Reptile as a “veiled” golden rule argument “because it seeks to have jurors decide a case not on the actual damages sustained by the plaintiff but rather on the potential harms and losses that could have occurred within the community, which includes each juror and his or her family members.” Id. 

Marshall also points out that an outsized punitive damage verdict that results from jurors punishing a defendant for potential infliction of hypothetical damages, beyond what the plaintiff actually suffered, is vulnerable on due process grounds. The Reptile strategy attempts to appeal to survival instincts and a juror’s innate urge to protect her community. Marshall writes that “the Due Process Clause specifically prohibits punitive damage awards based on potential injuries that could have been inflicted on other members of the community.” Id. (emphasis in original).

Another avenue Marshall discusses involves the prohibition, in most jurisdictions, of “other similar incidents” evidence. Again, the Reptile is concerned, not only with what did occur in the case at hand, but what hypothetically could have occurred based on the defendant’s blameworthy safety practices. There is little difference, in terms of evidentiary value and risk of prejudice, between an “other similar incident” and a hypothetical similar incident that could have occurred (but fortuitously didn’t).

Marshall points also to an argument available in certain jurisdictions barring a lawyer in closing argument from urging the jury to “send a message” to the defendant, or to “act as the conscience of the community.” Id. at 74. Since this is exactly what the Reptile strategy is based on, there may be  a basis for exclusion/preclusion of Reptile tactics on this basis, as well.

Finally, Marshall suggests that, if efforts to exclude or limit Reptilian trial tactics are unsuccessful, it may be possible to dilute the effectiveness of the Reptile strategy by explaining it to the jury. Marshall suggests it may even be appropriate to “compliment the plaintiff’s attorney in . . . closing and praise his or her ability and zeal” (Id.), using this as an opportunity to explain the psychology of the Reptile strategy and why they should not get too carried away by it.

See, there’s more than one way to skin a . . . er . . . lizard.

One of our most important jobs during trial is to object, when necessary, to prevent the improper admission of evidence. But doing this job, even properly, is not without its risks. Chief among these is the risk of alienating jurors or garnering resentment because it is obvious–assuming the objection is sustained–that you have succeeded in hiding some quantum of information from the jury. After all, they’ll wonder, if your client’s case is so obviously a winner–as you said in your opening statement–why this need to hide facts from us?

As always, the wise Professor McElhaney has something to offer on this topic. In his Trial Notebook (3rd. Ed.), he suggests we learn and practice how to make objections understandable to the jury. He even suggests they can be made appealing. He writes:

“It is true that objections are supposed to be made to the bench, not to the jury or opposing counsel. In fact, addressing either your adversary or the jury is an invitation for a reprimand from the judge. On the other hand, there is no rule against making objections so that the jurors understand the basis for your objection and perhaps even sympathize with your position, rather than concluding you are pulling some lawyer’s trick to keep them from hearing the whole truth.

Essentially the idea is to state a legally sufficient objection–one that is specific and accurate–which a layman can understand and appreciate, and do it in five to ten seconds. For example, ‘Objection, leading,’ may win a ‘sustained’ from the judge, but will not really help the jury understand what you have done. ‘Objection, Your Honor, leading. Counsel is putting words in his witness’s mouth,’ lets the jury see that your adversary has been doing the testifying.

The time limitation is very important, since if you take too long, you are inviting attack for making a speech. With some work, even the most difficult concepts can be understandably compressed in a short time. Instead of saying, ‘Objection, hearsay,’ you might say, ‘Objection, Your Honor, the jury can’t tell whether some casual bystander this witness overheard was telling the truth. This is hearsay.'” (p.327)

McElhaney goes on to point out that, while it may seem like fine trial lawyers who make well-phrased objections do so extemporaneously, the truth is that such language is generally developed and practiced in advance.

For many, the words “lawyer” and “reptile” are probably synonymous. Since 2009, however, some lawyers have sought to transform the courtroom into a reptilian battleground.

That year, attorney Don Keenan and jury consultant David Ball published a book on trial strategy called Reptile: The 2009 Manual of the Plaintiff’s Revolution. I’m not sure how “revolutionary” it has really been, but the theory and the book have indeed received some attention, if only because the practice clarifies something clever (and successful) plaintiff lawyers have implicitly understood for decades.

What is the “reptile” theory? It is built upon research performed in the 1960s by neurologist Paul MacLean, who posited a theory that the brain is comprised of three parts: the reptilian complex, the paleomammalian complex and the neomammalian complex. The reptilian complex includes the brain stem and the cerebellum, the oldest part of the brain, which thrives on survival. The reptilian brain maximizes “survival advantages” and attempts to minimize “survival danger.” Id. at 17.

As applied to trial strategy, the theory attempts to capitalize on the need of the reptilian brain to avoid “survival dangers.” As Keenan and Ball write, “When the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community.” Id. 

How does the theory work? The goal, through witness examination and closing argument, is to capitalize on jurors’ innate need to minimize survival dangers. In other words, the evidence and argument must convince a juror, not only that the defendant acted negligently, but also that, such conduct threatens the juror’s community (beyond the single plaintiff), which could include the juror and his/her family. Further, jurors must be made to feel empowered, by virtue of their verdict, to prevent this conduct, thereby protecting the community.

The goal in getting jurors to think with the reptilian part of their brains appears to be (1) to obtain a winning verdict even when logic or emotion might cause jurors to find against the plaintiff’; and (2) to maximize the size of the verdict, by encouraging jurors to think beyond the risk or the harm suffered by the individual plaintiff, to the safety of the broader community.

Coupled with the principles from the book Rules of the Road (about which I previously wrote here and here), lawyers can go reptile by invoking or establishing broad “safety rules” which the defendant violated, but which would have avoided the harm if they had been followed. Keenan and Ball offer six characteristics that each safety rule must possess in order to trigger jurors’ reptilian brains:

• The rule must prevent danger;
• The rule must protect people in a wide variety of situations, not just the plaintiff;
• The rule must be in clear English;
• The rule must explicitly state what a person must or must not do;
• The rule must be practical and easy for someone in the defendant’s position to have followed; and
• The rule must be one that the defendant will either agree with or seem stupid, careless or dishonest. Id. at 52-53.

Some examples? Keenan and Ball begin with the broadest possible “umbrella rule.” Id. at 55. Think: “A [_____________] is not allowed to needlessly endanger the public.” Fill in the blank: doctor, car maker, construction scaffolding supplier, etc. You get the idea.

Next, the authors advocate eliciting admissions, from the defendant and/or its experts, to gradually narrower, more case-specific, safety rules. From the undeniable umbrella rule that “A doctor is not allowed to needlessly endanger the public,” for example, the case-specific rule is “If a cardiologist has a choice between two treatment alternatives, he/she is negligent unless he/she elects the absolute safest choice.” After all, if a doctor picks any alternative that is not the absolute safest, he/she is needlessly endangering the public, right?

As I say, I don’t think the Reptile approach is all that revolutionary. I remember encountering lawyers long before 2009 using a very similar approach and it made a lot of sense to me, even without any tie to neuroscience. In my next post, I will discuss how to prepare a witness for a reptile deposition.