In her new courtroom thriller, Under Oath, Margaret McLean occasionally writes from the jury's point of view. It makes for some interesting reading.
Thinking from the jury's point of view is, of course, a skill that every trial lawyer should develop. For one thing, it will help you keep the jury from viewing you like the jurors view the lawyers in McLean's book:
"They think we're stupid, like the law's too complicated for us. Lawyers and judges think they're so far above everybody else."
"And then they pretend they're one of us when they try a case," Henry said.
Several jurors sneered and nodded.
There's a lesson there for trial lawyers who are humble enough to see it.
These days, when alternative dispute resolution is more popular than ever before, is pays for you to have a thorough understanding of the ways in which you can make ADR work for your clients. An interesting, comprehensive analysis of the pros and cons of ADR can be found in an article by Anthony J. Mercorella titled "Alternative Dispute Resolution: Expediting Cost Efficient Resolution of Claims" (pdf). In addition to containing all the basics, it will help you to see ADR from your opponent's point of view, which might give you negotiating ideas that you wouldn't have thought of otherwise.
In In re Commitment of Simons, No. 97026 (Ill. Dec. 16, 2004), the Illinois Supreme Court adopted a de novo standard for review of Frye rulings. Previously, the court analyzed Frye rulings under an abuse-of-discretion standard. There's more at Blog 702.
In Helen Gunnarsson's ISBA Trial Practice Update for January 5, she writes:
Is a company which maintains Internet web pages which are accessible in
Illinois, but has few or no other contacts with the State, "transacting
business" in Illinois such that an Illinois court could properly exercise
personal jurisdiction over it? Kris Murphy explores this fascinating issue
in the December 2004 issue of ISBA's Trial Briefs newsletter.
The Trial Brief newsletter is available here (pdf). Illinois lawyers who wish to subscribe to the Trial Practice Update should visit the ISBA's web page.
When you are cross-examining a witness, you should be careful not to give the witness an opportunity to explain. This is exactly what you'll do, however, if you use adjectives needlessly--
Q. "You couldn't see the collision clearly, Mr. Witness, could you?"
A. "Yes, I could. I had a very clear view of the collision. I was standing right there when it happened--there no way I could have had a better view."
The witness might also reply, "It depends on what you mean by 'clearly.'" In either case, the witness is no longer under your control, and the jury is watching him, not you.
Rather than using adjectives, think about the facts that together can stand in place of the adjective, then turn each of these facts into a separate question. It will make your point as clear as possible, will give the jury a visual image, and will keep the witness under your control--
Although Press Millen is quick to remind readers that "litigation is not a game," he's written an entertaining article, "Poker's Lessons for Litigation," which originally appeared in the North Carolina Lawyers Weekly. The fifth lesson, "watch for the tell," contains this advice for deposition-takers:
Testimony, whether in court or in a deposition, can be a virtual
laboratory of tells. By carefully listening to and watching a deponent,
we can often tell when a witness is holding something back. By
continuing to pick at the witness with further questions, I have often
arrived at the point where the witness was finally forced to give me
the complete story.
The trick, I might add, is knowing when the witness is holding something back. Two dead giveaways: when the witness either evades the question or seems to have a memory lapse about an important matter when other matters within the same timeframe are easily recalled.
Note: Thanks to my law firm's winter-break research assistant, law student Aaron Call, who found this article as well as some others I'll post about in the weeks ahead.