The Legal Advocate

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All posts by Alli Keefe

Jury Speech Rules: The Art of Ethical Persuasion

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Authors David M. Malone and Warren S. Radler have brought out the third edition of their book, Jury Speech Rules: The Art of Ethical Persuasion. Trial lawyers will learn that persuasive jury opening statements and closing arguments require imagination, storytelling skills, and a thorough knowledge of the legal and ethical rules that govern this important part of trial. The third edition includes new material specifically for prosecutors.

Retail Price: $39

Available in: Print, epub, and mobi

Monthly Theme: Voir Dire Part Three

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Recognize Leaders

Written by NITA guest blogger Melissa M. Gomez and excerpted from her book Jury Trials Outside In: Leveraging Psychology from Discovery to Decision

One persuasive person can make all the difference. That is why, in jury selection, I not only focus on those characteristics that will make jurors biased against my client, but also those that give a person the kind of charisma that will make her a persuasive thought leader in deliberations.

Leadership is a topic that has been studied and discussed extensively in business journals and academic research. In 2010, for example, de Vries, Bakker-Pieper, and Oostenveld conducted a study that evaluated different leadership styles. In their research, they surveyed 279 employees of a governmental organization. They then categorized their leadership findings into six communication styles: verbal aggressiveness, expressiveness, preciseness, assuredness, supportiveness, and argumentativeness.[1]

In the jury context, one of the main goals of voir dire is to get a sense of who the leaders may be on a panel. Who will be the foreperson, and what kind of impact will that person have on the other members of the panel? In that and other contexts, we often perceive leaders as those who are outwardly talkative, dynamic, and forceful with their opinions. In other words, we associate leaders as those who act in line with de Vries et al.’s verbal aggressiveness and argumentativeness. In doing so, we focus on the wrong characteristics. What these scholars found is that the strongest leaders are not always the loudest—other qualities abound that make someone the kind of person others will actually want to follow.

The research suggested that preciseness is the characteristic that most clearly indicates perceived leader performance and satisfaction with the leader, and this is above and beyond other leadership style variables. It isn’t about being loud. It is about being clear. Precision makes it easy for others to know what to do and where to go. It is the comfort of organization and clarity as opposed to leadership by volume, which can feel like chaos.

In Malcom Gladwell’s book, The Tipping Point,[2] he discusses the precision type leaders and their power to bring other people to act, to adopt an idea or to purchase a product. He calls them “salesmen.” In your jury, these are the panel members that sell a case idea or concept in such an effective manner that the other jurors will follow. Having a person like this on your jury can be like having a jury of one person. You convince her, she will convince everyone else with precision. If she is against you, she will turn everyone else against you. All I have to say is that if voir dire reveals someone who appears to have that kind of strong leadership potential, you need to be pretty darn confident she is going to be on your side to keep her on the jury. For me, if I am not confident about which side she will support, she will be my number one strike (or, more likely, my final strike if I decide to play chicken with opposing counsel, hoping they strike her first).

A Pennsylvania focus group in which one of these powerful salesmen participated comes to mind. The case at issue involved an emotionally charged story about an injury to a child. Deliberations were heavy with debate. As the other panel members argued, the salesman did not jump out of the box, yelling his opinions. He was too effective for that. Instead, he sat. He watched. He listened. He didn’t say a word. He didn’t volunteer to be the foreperson. Once the rest of the jurors became exhausted and frustrated with one another, he spoke—not only from his own perspective, but using what he had gained from the other jurors’ opinions. He spoke with a certain grace and sophistication that drew people in. He didn’t say much, but after he did, no other juror voiced an opinion independent from his interpretation. The salesman was selling, and the rest of the jurors were buying.

At the end of their deliberation, I sat down and discussed the case with the group, actively trying to get opinions from the other jurors. They repeatedly referred back to what the salesman had said, repeating his words and starting sentences with “well, I just agree with Bob” or “As Bob said . . . .”

Therefore, when assessing leadership, you must ask not only if there is a person who has the confidence and assertiveness to lead. You also must consider whether that person has the kind of charisma that will make others want to follow and the precise clarity so they can follow.

The good news is that a powerful salesman will more likely than not make him or herself known in jury selection if given a chance. She will speak with confidence in voir dire and happily provide opinion with clarity and precision. For this reason, if the court process allows, ask questions that are open-ended. Getting a sense of communication styles by letting jurors speak freely will give you a better picture of confidence, charisma, and eloquence—the telltale signs of a salesman. Getting just the facts in voir dire may help you identify basic characteristics in your juror profile, but hearing the manner in which someone speaks lets you know more about the interpersonal style or skills of that person.

After all, the power of one can make all the difference.

[Nationally known jury consultant and the President of MMG Jury Consulting, LLC, Dr. Melissa M. Gomez holds a PhD in Psychology and a Master of Science in Education from the University of Pennsylvania. She has worked on over 500 jury trials across the United States with a focus on the psychology of learning, behavior, and decision-making. She is the author of Jury Trials Outside In: Leveraging Psychology from Discovery to Decision, published by NITA.]

[1]. Reinout E. de Vries, Angelique Bakker-Pieper & Wyneke Oostenveld, Leadership = Communication? The Relations of Leaders’ Communication Styles with Leadership Styles, Knowledge Sharing and Leadership Outcomes, 25 Journal of Business and Psychology 367 (2010).

[2]. Malcom Gladwell, The Tipping Point: How Little Things Can Make a Big Difference (2000).

Trustees for Alaska – NITA Public Service Program

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Continuing to expand NITA’s public service reach – we headed off to Anchorage, AK for an appellate advocacy public service program with Trustees for Alaska, a nonprofit public interest environmental law firm. The program took place March 8 – 9 and was led by NITA Program Director, Chief Judge Nancy Vaidik, who has served as program director for many of NITA’s programs over the past 15 years.

Chief Judge Vaidik stated that the program was an amazing experience and that each participant, regardless of their experience, improved. “We were in pristine Alaska, surrounded by attorneys who wanted to keep it that way, and who were extremely motivated to improve their oral advocacy skills.”

Furthermore, the program was designed to help the attendees address several core competencies involved in oral advocacy. This process included a communications training, planning the argument, arguing the argument in front of a panel, and video review in order to receive feedback on the effectiveness of the argument.

At the conclusion of the program, one attendee stated, “This was the best training I have had as a lawyer! The training was tailored to what we needed and the execution was excellent. Thank you!”

Likewise, another attendee stated, “It was an excellent course, very informative and hands-on, just what we needed and asked for.”


Monthly Theme: Voir Dire Part Two

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Practice, Practice, Practice

Written by NITA guest blogger: Richard Schoenberger

Most cases involve two trials, the first one in the court room and the second one in the jury deliberation room. Pre-trial studies that identify top demographic trends of participants who would most help your case and that gather feedback in the form of surveys and multiple focus groups can obviously help develop themes and find the right jurors for you. But, at some point, you will be standing there – naked and alone – charged with the task of finding the right jurors for your client’s case or, much more accurately, “de-selecting” the wrong ones. This article makes the case for the notion that the best voir dires are those that have been practiced in advance. Huh, you say?

This we know for sure: At a minimum, one can lose the opportunity to win a trial in voir dire. Therefore, isn’t jury selection the most important part of the trial? For me, it is hard to argue otherwise. After all, these are the folks who will be making the decision that affects your client’s future. Get the wrong mix, and you may have yourselves a problem. Get the wrong leader? Forget about it! An individual’s occupation/vocation, whether for compensation or volunteer, really matters. Are they in leadership positions? Do they supervise, terminate, manage, make difficult upper level decisions? If so, they are probably a leader and you need to pay particular attention. Are they a leader who values personal responsibility over social responsibility? If yes, more likely a good defense juror in a civil case. If not, probably a good plaintiff juror. But, get them talking to find out! Easier said than done?

And remember, your goal is not to uncover those folks who are likely to agree with your case, but the exact opposite. You are in search of those whose belief systems are directly counter to some of the weaknesses in your case. So, your focus during selection is on the bad stuff in your case, not the good stuff. You are out there trying to gauge reaction to the things you are worried about, not the things that make your case strong. The last thing you want to do is highlight your good jurors.

Getting people to be brutally honest and speak openly in front of a room full of strangers on topics that concern you and that they never before considered can be, to put it mildly, a tad difficult. How do you make jurors feel comfortable enough to talk and really open up? How do you bounce from juror to juror? How do you reveal and “de-select” those jurors who are wrong for your case? This is hard enough for the most experienced lawyers, but can be particularly challenging for those just starting out.

Despite this, it seems that new trial lawyers don’t spend enough time preparing for all-important jury selection, and as such, it becomes the scariest part of the trial for them. If conventional wisdom supports the notion that lawyers should practice/rehearse opening statements, why isn’t it equally important that lawyers practice/rehearse voir dire? You would be amazed at how much better you will feel with the real thing when you have already spent an hour or two with a group of people asking open-ended questions about your concerns in your upcoming case – i.e. when you have emptied your “worry basket” with vulnerability and candor; when you have worked out your first 1-2 minutes in front of them; where you can learn to listen and react instead of simply trying to educate; when you have practiced converting from open-ended questions to leading-type questions to establish a cause challenge.

A focus group specifically devoted to jury selection can be done on the cheap. Systems exist for recruiting local residents to come in for a few hours for a fairly low sum, certainly less than $1,000. Or, you can simply grab a group from your firm or a group of trusted family/friends and force them to assume the role of pretend jurors. This can be done even more cheaply! By practicing this way, you develop the muscle memory for themes you wish to advance, for problems you want to voice. Do it more than once if you can. These dress-rehearsals make the real thing so much better…and dare I say, more enjoyable!

Remember, first impressions matter. Jury selection is the first time that you will have the jurors’ undivided attention. This is the time that you can establish rapport; that you are able to show yourself as the trustworthy lawyer who will lead the jury down the path of truth and justice. To do this correctly, you will not be taking copious notes, but instead standing before them, razor-focused and attentive to the verbal and non-verbal cues that they will be offering up. How uncomfortable is that? Much less so when you practice. You and your clients will benefit tremendously.

[Richard H. Schoenberger is one of the most highly respected trial lawyers in California. In 2011, he was selected as the Trial Layer of the Year by the San Francisco Trial Lawyers Association. It was his second nomination for this prestigious award. Rich joined the Walkup Melodia office in August of 1987 and became a partner in 1995. He has served as program director at NITA’s Advanced Advocacy program since 2014.]


Commission on the American Jury Survey

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The American Bar Association has recently released a press release in which the Commission on the American Jury has conducted a survey to examine reasons for the decline of jury trials. To read the release and get information on where to take the survey, click the link here. The survey’s results will be published in late 2018 and is open to judges, lawyers, court staff, and other legal system participants.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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