Perhaps I should say how will you cope “if” rather than “when” your trial technology takes a giant lets you down, but I’m a pessimistic fatalist, or a fatalistic pessimist. Or something.

But the internet is all abuzz about Michael Bay’s meltdown on Monday during a Samsung press conference at the CES 2014 Conference. If you’ve missed the viral video, it’s not really that earth shattering. But, let’s agree that it’s lucky for Bay that he doesn’t have to count on his public speaking skills to earn a paycheck. If you or I were presenting evidence and our computer or Trial Director program went screwy, apologizing and walking off wouldn’t be a realistic option.

But this stuff does happen. And, like a jazz musician, you’ve got to improvise. Even if you are meticulous in your preparation and think you’re prepared for anything, chances are something could happen that will catch you off guard. I’m of the view that, rather than fooling yourself into thinking you’re so well prepared that nothing will surprise you, it’s a better idea to expect that something will go wrong–or at least something unexpected will happen–and prepare yourself up to deal with it. That’s more fun, anyway.

Concededly, one way to reduce the chances your technology will fail you is to rely on it less. Many trial lawyers still use overhead projectors because they’re almost fool-proof. Or they say they use them because they are almost fool-proof, but the real reason is they can’t be bothered to learn Powerpoint or Trial Director. Whatever their reasons, I have no quarrel with going old school, low-tech, if it conveys the message and wins the case. A good trial lawyer with nothing but an easel will do far better than a so-so lawyer with the most advanced technology available.

The problem with resisting technology in trial presentation, though, is that the internet, gaming and effects-driven movies have made people–some of them your potential jurors–almost numb to anything that lacks a wow factor. There’s also the brute fact that some of these technologies really are brilliant and, frankly, should be embraced to the extent they can help lawyers, good and so-so alike, present otherwise dry or complex information in a way that engages jurors.

Regardless whether you embrace technology or remain a caveman lawyer, you need to embrace the unexpected. I’m going to go out on a limb and suggest that, given the fascinating life he’s led, there’s a decent chance Michael Bay could have conjured an extemporaneous presentation that was even more compelling than what was written on the broken teleprompter. But he needed to be prepared for the possibility that the teleprompter (or something else) would let him down.

I like the idea of trying to take a bad situation and turn it to your advantage. If a jury or other audience sees you confronted with a technical malfunction or other problem, it can be more than just an opportunity to let the jury, the judge and your client down. To fail miserably. It’s equally an opportunity to gain credibility and respect because you did not let the mishap derail your presentation. You get bonus points if you find a way to weave genuine humor–not corny or forced–into the situation.

A couple of weeks ago, I sent fellow blogger and trial consultant Rich Matthews an email asking if he would comment on a post I was thinking about writing. It would be called “Avoid These Five Ways Of Alienating The Jury.” I was expecting him to provide a laundry list of “don’t dos” if you want to stay on a jury’s good side, such as wearing a bow tie,† showing up late, interrupting witnesses, etc.

Instead, Rich offered a much shorter list of ways–just two–to give the jury what they want and expect. On reflection, Rich’s list of “dos” made much more sense than my proposed list of “don’ts”. Here’s what Rich said:

“I think jurors want two and only two things from counsel, and get alienated easily when these are violated: help with understanding the material, and not wasting their time. That’s it. As obvious as that might sound, all courtroom lawyers should do a really honest reflection on their own trials and notice how many times they run afoul of either or both of these unconscious demands jurors have. That third witness you put on to say basically the same thing? Wasting jurors’ time, and they will resent you for it. That technical witness who was not understandable to them? Flunked both. A closing argument that didn’t explain [relevant rules, damages, verdict form, whatever] well enough? Didn’t help them with the material. I suggest that as counsel is planning the trial sequence, run everything through that filter; will it help jurors understand the material, and does it waste their time as THEY will judge it? Unless it’s ‘yes’ to the first AND ‘no’ to the second, leave it out. (Bonus hint: the first place to look is your witness list. Most of the time, lawyers would be better served to use fewer witnesses than they do. Wasting time in this manner just frustrates jurors if they don’t perceive each additional witness is adding new information or understanding.)”

Rich’s suggestion that what the jury wants most is help understanding the material echoes a point Professor McElhaney makes in the opening chapter of Litigation, entitled “The Guide.” He writes:

“You are the guide who knows the territory, the one who can be trusted to steer the jury straight throughout the entire trial.

Does it work? Imagine for a moment: Suddenly you find yourself in the middle of an unknown swamp. You don’t know where you are or how you got there. All you know is that somehow you  have to find your way out. You have no compass. There are no roads or trails, no signs or maps, no shadows or guiding stars. As you look around, you see two people, each saying there is only one way out. The problem is, each one is pointing in a different direction.

Which one do you follow–the one who has the suitcase with the collapsible legs, who wants to sell you one of the watches on his wrist; or the one who is pointing out landmarks and is helping you understand the terrain?” (Litigation (ABA 1995), at 4.)

Rich’s point about not offering duplicative testimony which the jurors judge as a waste of their time brings to mind this comment by another notable trial advocacy guru, Professor Thomas Mauet. In his Fundamentals of Trial Techniques, Professor Mauet points out that:

“Whom you call as witnesses to prove your case is frequently not an issue. You simply must call the witnesses you know of to establish a prima facie case, and there is no room for choices. Most of the time, however, you will have choices. . . In deciding to call certain available witnesses, remember the following considerations:

1.  Do not overprove your case. Many lawyers call far too many witnesses, thereby boring the jury or, even worse, creating the impression that the lawyer doesn’t have confidence in her own witnesses. In general, calling a primary witness and one or two corroboration witnesses on any key point is enough. It’s usually best to make your case in chief simple, fast, and then quit while ahead.” (Fundamentals of Trial Techniques (3rd Ed. 1992), at 388-89.)

I think Rich’s approach to giving the jurors what they want–rather than trying to walk on eggshells not to alienate them–is by far the better approach. Thanks, Rich!

†Truth be told, I have no problem with bow ties, and I expect most jurors don’t, either. A bad, porno movie mustache, on the other hand, will not be tolerated (except by jurors with their own bad, porno movie mustaches).

On Wednesday, a 12-member New York jury returned a verdict against Michael Steinberg, a senior portfolio manager with hedge fund SAC Capital Advisors LP, finding him guilty of trading using inside information that allegedly passed through four people before it reached him. An article in today’s Wall Street Journal about the deliberations of the jury forewoman, Demethress Gordon, provides a glimpse into how jurors bring their own experiences to the deliberation process, sometimes filling gaps left open by the trial attorneys.

Ms. Gordon entered the deliberations convinced Steinberg was innocent. The evidence against Steinberg included tips passed to him from his subordinate, an SAC analyst named Jon Horvath, about Dell and Nvidia. Steinberg allegedly placed trades within minutes after receiving the information from Horvath, who was a cooperating witness in the government’s prosecution. Ms. Gordon was initially not convinced by the evidence that Steinberg knew the tips were the fruits of confidential, “inside” information. She rationalized, as the story points out, “he [Steinberg] was the boss and relied on his staff to supply him with information they knew to be proper.”

Following the first day of deliberations, however, Ms. Gordon attended a screenwriting class “that happened to focus on the subtext of characters’ actions.” This made her receptive to an analogy offered, during the second day of deliberations, by another juror “who told her to imagine walking through the door. ‘He told me to go through the door,’ she said. ‘I understood what he meant, without him having to say, ‘Walk to the door. Turn the knob. Step through it.'” It “suddenly clicked. People can understand more than they are told . . . Mr. Steinberg must have known the information he received was based on nonpublic information . . . even if it wasn’t explicitly made clear.” After Ms. Gordon changed her mind and explained her reasoning to the sole remaining hold-out, who agreed, the jury returned a unanimous guilty verdict.

This perfectly illustrates how jurors will sometimes draw from their own outside experiences or intuitions to fill a problematic chasm in the elements of a case (or a defense). While I don’t know more about the evidence either side presented, this suggests to me (1) that the prosecutor did not have or put forth sufficient evidence that Steinberg would have understood, explicitly or implicitly, that the analyst’s tip was inside information (though it is telling that 10 of 12 jurors were apparently ready to convict at the end of the first day of deliberations), and/or (2) Steinberg’s defense attorney did not sufficiently anticipate and exploit this gap in the evidence. Either way, it’s interesting to be a fly on the wall.

We could debate for hours whether compelling public speakers are born with that gift or they achieve it through diligent practice. I suspect that, like many skills, it’s probably a bit of both. Few would disagree that everyone benefits from practice. Practice with honest feedback can be particularly helpful. This is why I’m a big fan of Toastmasters.

I think it’s probably also true that many speakers can sometimes make major improvements just by making a small tweak in the style, content, or both, of their presentation. Here I’m thinking about some advice I came across in Brian Johnson and Marsha Hunter’s recent book, The Articulate Attorney (2nd Ed. 2013). They discuss the difficulties we encounter in maintaining audience attention. This problem is crucial if your goal in speaking is anything other than pure entertainment because it is unlikely your audience–a jury, for example–will process and retain anything you say if they’re not paying attention. Johnson and Hunter write:

“Listeners pay close attention to the beginnings of presentations. Minds often wander in the middle, and retention drops. When the listener gets a signal that the end is near–‘In conclusion . . .’–attention increases once again. Primacy is the first thing listeners hear; recency is the last.” (Id. at 85.)

I have elsewhere heard a variation on this observation, with the attendant advice that one should structure a presentation so that the really important information comes at the beginning and the end. I suppose that’s better than nothing. But the logical implication is that the information that comes between the beginning and the end is less important, or not important at all. I don’t know about you, but I try to leave information that is less important or unimportant out altogether. And we can’t very well just have a beginning and an end with no middle, can we?

Johnson and Hunter offer a superior alternative. They urge speakers to “chunk,” or divide larger bits of information into smaller chunks, which is easier for the human brain to receive, process and retain. Additionally, rather than a speech which consists of one strong beginning, a middle and one strong ending, they urge speakers to create several rather discrete chunks, each with its own beginning, middle and ending. They write:

“Since beginnings and endings are good, create more of them. Rather than conceive your presentation as having one beginning and one ending, clearly delineate each topic area. Begin new topics with a headline (begin/primacy) and explicitly mark the conclusion of the topic with a wrap-up (end/recency). When your major ideas are demarcated in this fashion, your presentation will have many beginnings and endings. Each time a new topic is headlined and closed out, the daydreaming (or emailing) listener’s attention is refreshed.” (Id. at 87.)

So go on, be a “chunker.”

Few of us aspire to be a briefcase carrier when we start law school, but that’s what many of us find ourselves doing when we first pass the bar. At least if we’re lucky. I know everyone might not share this view, but it can be pretty nice to get paid to finish the education you started in law school by carrying the briefcase for a lawyer who’s been trying cases for a while. Not everyone is a good role model just because they’ve got experience but, as I’ve said before, you can learn at least one thing from every lawyer you meet.

One of the first things I learned during my bag carrying apprenticeship was not to forget when you were in trial, or about to start a trial, that jurors, or potential jurors, are literally everywhere around the courthouse.

I learned this the hard way, of course, when I made the mistake of talking loudly about the our motions in limine with the partner as we were walking out of the courtroom. “Shhhh,” he said. I didn’t know at first what he was talking about; it seemed like we were all alone in the hallway, or alone enough, so that I could speak freely. “The walls have ears,” he said. I still didn’t understand until, a few steps later, I noticed the familiar face of one of our prospective jurors, leaning against the wall, reading a dog-eared paperback.

When we got outside, and we were very clearly alone, he said, “Remember when you’re in trial that jurors are literally everywhere. And they hear and see everything.”

I was reminded of this point last week when working with Juryology blogger Rich Matthews on drafting a post about working with jury consultants. Rich pointed out that jurors pay attention to how parties and their lawyers act outside the courtroom. Are you or your client rude or impatient in getting through the security screening process coming into the courthouse? What about in the courthouse cafeteria during lunch? It is all information and they take it into the deliberation room.

I knew about one prominent LA trial lawyer who had done well, and owned a couple of exotic cars, but would only drive his Jeep Grand Cherokee when he was in trial. He felt it was important for jurors who saw him arrive at the courthouse (or leave at the end of the day) to see him driving a sensible, American-made car.

When someone at my firm is in trial, associates are encouraged to come down to watch at least a portion of the proceedings. But they are admonished in advance to (1) dress well, (2) behave with extreme decorum in the courtroom, and (3) do nothing to create the impression they are affiliated with the firm or the client, lest the impression they create is a poor one.

I’ve previously written about how young lawyers enjoy an undeserved reputation for honesty. It’s a gift. Don’t squander it.

Similarly, when jurors encounter a trial lawyer for the first time, the lawyer’s mere presence in the courtroom says many things before the lawyer opens her mouth. This observation comes from the trusted Professor McElhaney. In a chapter from Litigation (ABA 1995) entitled “The Most Important Witness,” he suggests that a trial lawyer’s presence in the courtroom implicitly says to the jury:

• “I have studied the facts and understand what this dispute is all about. You can trust me to steer you straight.
• I have carefully screened the witnesses. I will only call those who will tell you the truth.
• I know the law that governs this case. Justice is on our side.
• If I introduce evidence, it is because it is important.
• If I leave something out, it is because it is not important.
• And If I attack a witness, it is because he is not telling the truth.” (Id. at 9.)

Of course, just as with a young lawyer’s unearned reputation for honesty, each of the above assumptions can be quickly proven wrong. Witness choice is a perfect example. While you sometimes have no choice but to present a dodgy witness, this should not be undertaken lightly. As Professor McElhaney points out:

“[T]he very act of putting the witness on the stand implies that you are vouching for his credibility. . . . Whom do the jurors blame for a bad witness? Listen closely to the comments clerks and bailiffs hear every day. ‘I wonder where she got that guy?’ ‘Where did he dig him up?’ ‘Can’t he find someone better than that?'” (Id. at 11.)

Another opportunity to prove the jury wrong in their initial positive impression arises from how you organize your evidence presentation, including direct examination of your witnesses. How you conduct the examination, what you leave in and what you leave out can affirm or undermine the assumption that “If I introduce evidence, it is because it is important.” As McElhaney says it:

“A confused, rambling examination suggests a disorganized understanding of the facts. Not only does it fail to tell the story effectively, a poor direct examination is the living picture of a guide who cannot be trusted to lead a jury through the thicket of facts in the case.

Dwelling at length on small points is a little different. At first it suggests that the seemingly insignificant detail will become important later on.

Why? Just putting it in the case says it is worth the jury’s while.

So the first time the fact that took so long to explain turns out to be meaningless, the jury feels cheated. When it happens again, they wonder whether the lawyer is trying to kick sand in their faces or is just inept.” (Id.)

The jurors are your friends, your students and your wards. Don’t kick sand in their faces.

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?

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.

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.

In his chapter on Jury Selection, Thomas Mauet suggests we put ourselves in the shoes of the prospective jurors in order to identify with them and maximize the opportunities that come from voir dire. This is what he says:

“Put yourself in the shoes of a prospective juror. You recently received your notice to appear for jury duty. This morning you arrived at the courthouse, waited in the jury room most of the morning, read a pamphlet about jury service, and were finally called, with about 30 other persons, and brought to a courtroom. You just entered the courtroom and sat down. You can see the judge on the bench, and various other persons in the front of the courtroom. And then you wait some more.”(Fundamentals of Trial Techniques, (3d. ed.) p.23.)

Sadly, during all of the years I have reported for jury duty, I’ve never even made it into a courtroom as a prospective juror. So for now I have to try to imagine what goes through the minds of prospective jurors as they get seated and are questioned by the judge and the attorneys. Mauet helps us along:

“Most jurors have little or no experience in the courtroom. They are in the midst of strangers. They are apprehensive and intimidated. They are worried that their ignorance about the jury trial system will show. They are concerned about their life’s secrets being exposed.” (Id.)

It would never have occurred to me that prospective jurors worry about secrets being exposed. If I reflect on it, though, some people are very uncomfortable revealing, even to one other person, the most basic information, such as their occupation, education level, etc. Of course, voir dire questions often get more personal, including your past experience with the civil or criminal justice system, whether you’ve been a victim or sued. Knowing most of the jurors are uncomfortable, and some even petrified, what’s a trial lawyer to do? Mauet suggests we “turn it around.”

“Change from being a stranger to being the jurors’ friend. If they feel intimidated, reassure them. If they are among strangers, make them feel comfortable. If they are worried about their ignorance, help them become informed. If they are concerned that secrets in their past will be exposed, reassure them. In short, the jury selection process is an opportunity for a trial lawyer to become the jurors’ friend and guide by helping them understand the trial system, by reassuring that they do belong here, and by letting hem know that their participation is important to you and  your party.” (Id.)

Making strangers feel comfortable, reassuring them that publicly sharing their personal and family history is necessary and appropriate, is a pretty tall order. Is it possible? In some cases probably not. But Mauet’s point is well-taken. Recognizing the feelings and emotions of potential jurors, and attempting to connect with them in a way that is both human and humane, is surely the first step toward gaining their trust.

It is no exaggeration to say that I learn something (or many things) from every mediation or settlement conference I attend. I recently traveled to Fresno to attend a settlement conference before a talented and hard-working USDC magistrate judge. During the conference he made a point that had escaped me before, but hopefully never will again.

First some background. This was an employment discrimination case in which the plaintiff alleged harassment, retaliation and constructive discharge, which would require her to prove that her working conditions were so intolerable that a reasonable person in the plaintiff’s position would literally have had no choice but to quit.

Early in the settlement conference, the judge met briefly with the lawyers and parties altogether. He employed an interesting, but effective approach. He spent a bit of time talking about the parties’ respective cases, focusing on each side’s weaknesses. After a few minutes of this, he said “here’s where I see the range,” and proceeded to give us a bracket.* The bottom of the bracket was well above where my client, the defendant, was prepared to negotiate so early in the settlement conference. However, the top of the bracket was well below where we knew (from prior discussions with her counsel) plaintiff was interested in beginning negotiations. Thus, both sides were equally unhappy. The judge concluded this introductory session by excusing us to meet separately with our clients. If both parties were interested in negotiating within the judge’s bracket, we should return after lunch and continue the settlement conference. If either party was not willing to begin in the bracket, we were instructed to so advise the judge’s clerk and we would be excused for the day.

What I liked about this approach was how it cut through a lot of preliminary posturing. While I would not recommend it for a paid mediator, it was effective coming from a USDC magistrate judge. Both parties reluctantly agreed to negotiate within the bracket and, several hours later, we settled the case.

One of the things the judge pointed out when he was apprising plaintiff and her lawyer of weaknesses he perceived in her case related to where the jury venire would be drawn from if we did not settle. Had the case been pending in state court, jurors would have been drawn solely from Fresno county, which apparently enjoys a healthy mixture of middle and lower middle class jurors owing to a university and, if not thriving, at least sustaining local agriculture-based economy.

But, because we were in the Eastern District federal court, our jurors would be drawn, not only from Fresno county, but also from several surrounding counties. The judge pointed out that jurors from many of these surrounding counties will have been struggling financially since before the recession. Jobs are scarce. Many of these jurors, the judge said, will not be particularly sympathetic to the notion that any person who was lucky enough to have a job would voluntarily chose to leave, regardless how bad the conditions were.

Whether this hit home for plaintiff or her lawyer I don’t know. But I thought it was a pretty powerful point. Forum shopping is nothing new and our opponent had unsuccessfully fought pretty hard against our removal of the case from state to federal court. But, if you find you’re in a venue in which the jurors are not going to easily receive your client’s theory or conduct, it’s important to factor this into your strategy and presentation.

How do you figure out if you’re up against this kind of “region bias” on any particular issue? I had spent some time looking at census statistics for Fresno, thinking I was gaining some understanding about our potential jurors, completely overlooking the fact that a district court draws from outside the county. There’s your answer, though. Find out definitively where jurors for your courthouse will be drawn from and analyze that entire region. A better approach, though, might be to retain local counsel (always a good idea, in my view, if the case warrants the cost and you can find reliable local counsel).

Whatever you do, it’s critical to find out where your jurors will hail from, and be perceptive to possible “region bias” issues that could impact your client’s success at trial.

*Of his “throw out a bracket” approach the judge said he would normally never “just put a number out there,” but he was pressed for time that day, as he had meetings and a hearing he had to fit in around our settlement conference. Ironically, throwing out the bracket was probably the most intelligent thing the judge did all day.

Bloomberg TV interviewed Vel Hogan, the foreperson of the jury in the recent Apple v. Microsoft patent trial, which returned a $1 billion verdict in Apple’s favor.  Undoubtedly future jury consultants will anchor entire PhD theses on this trial.  I don’t pretend to have the education and experience to do any kind of in-depth analysis.  But a few interesting points can be quickly gleaned from the interview.

Takeaway Number 1: Vel is smart.  But not just intelligent or wise.  He possesses the kind of intelligence, training and knowledge necessary to grasp much, if not all, of the technically sophisticated evidence presented during a patent trial.  According to my crack internet research, Hogan is VP of Engineering for Multicast Laboratories.  He holds patents and has been a member of the Silicon Valley tech community for over 30 years.  I would think most patent lawyers would be heartened to know jurors of Vel’s intellect are out there, available to be impaneled (particularly if your trial is conducted in a venue rife with tech engineers).  He said in the interview that the jurors were “inundated” with evidence.  Someone less intelligent or uninterested in technology could easily have been overwhelmed by the evidence and, rather than considering and re-considering the evidence–a great deal of which was highly technical — reached a verdict instead based the cut of John Quinn’s suits or because they like Apple’s TV commercials.

On the other hand, for the reason I am about to discuss (in Takeaway Number 2), many trial lawyers might be fearful of a juror of Vel’s intellect in this kind of case.  Purely from the interview, it does not appear Vel had any bias going into the trial or deliberations.  He owns no Apple products; his wife has a Samsung phone, but it’s not a smart phone.  If he had any bias that he concealed during voir dire, but that he brought into the jury room, it could have been a problem.  Why?

Takeaway Number 2: Vel served as a torch-bearing guide to most of the other jurors.  I speculate that it took the other jurors no time at all to select Val as their foreperson.   They knew from voir dire that he was a techie.  They probably paid attention to his expressions and slightest comments throughout the trial.  If/when he took notes, they either wrote notes themselves or wondered what they had missed that was so important.  He said in the interview that they started deliberations with a question and answer session, trying to clear up confusion some of the jurors had about certain issues.  Vel was thus their teacher, and their trusted guide in a way that none of the lawyers or witnesses could have been.  I suspect this was particularly true because I read about (and Vel Hogan alluded to)  Judge Koh’s frustrations with the lawyers for both sides throughout the trial.  The judge’s scoldings likely eroded the jurors’ confidence in the lawyers to guide them through the trial.  Thus, as a knowledgeable, likeable, apparently objective teacher and guide, Vel Hogan’s ability to influence the outcome of the trial was enormous.

Takeaway Number 3: Vel took the legal questions home with him and continued to deliberate.  He alluded during the interview to an “Aha” moment he had one night during the deliberations.  Before that, at the outset of the deliberations, he thought the verdict would likely be in Samsung’s favor.  But there was a single point that he struggled with (whether the No. 460 patent was invalidated by prior art).  He said that, after he internally resolved that struggle and decided he could defend the patent if it had been his own, much of the remainder of the deliberations went smoothly.  I speculate (with extra emphasis on that word) that the deliberations thereafter went smoothly because Vel, as the torch-bearing guide and teacher, had made his decision.  All that remained was for Vel to explain his own reasoning to the others.

Takeaway Number 4;  The jurors worked in a systematic fashion to reach their conclusions.  Several comments during the interview suggested that the deliberations were indeed deliberate.  They addressed the “simplest things first.”  If they hit a bump in the road, it would not derail their progress.  Rather, they suspended judgment on that point and moved on, with the plan to re-address the bump in the road informed by the outcome of their other deliberations.  In this way, they navigated their way (with their torch-bearing guide) through a veritable morass of evidence and instructions.

The interview is worth watching.  If I’ve mis-paraphrased Vel’s comments, please let me know.  I struggled with embedding the code, so the best I can offer is a link: https://bloom.bg/OkRkhk.