Articles Posted in Trial

Both the federal courts and Tennessee state courts have strict rules about the types of inquiry that can be made into a jury’s verdict.    The general rules for impeaching a jury verdict are set forth in Rule 606(b) of the rules of both systems and in a relatively few number of cases.  Why so few?  First, there are very few trials and therefore very few verdicts to impeach.   Second, there are even fewer cases where the parties can afford to thoroughly investigate what goes on "behind the curtain."

United States v. Siegelman  is an extraordinary case involving a criminal charges against the then-Governor of Alabama.  He was convicted, looked behind the curtain, found evidence of juror misconduct concerning exposure to extraneous information and improper communications during the deliberation, and brought it to the attention of the court.  The court then made its own inquiry, calling the jurors to a hearing and examining them.  The court determined that some me embers of the jury saw  “(1) a copy of the Second Superseding Indictment obtained from the district court’s own website; and (2) juror information from the website concerning the foreperson’s obligation to preside over the jury’s deliberations and to give every juror a fair opportunity to express his views.”

The trial court dismissed the allegations of jury misconduct, and last week the 11th Circuit affirmed the trial judge’s decision.  Here is a summary of the opinion as contained on the extraordinary Federal Evidence Blog.  Here is a copy of the 11th Circuit opinion.

A motion in limine to prevent your adversary from performing magic tricks in closing argument?

Read all about it here from  the Litigation and Trial Blog.

How do you impeach by contradiction? The Federal Evidence Review Blog has a fine summary of a recent case from the Third Circuit that provides a “textbook example” of how one sets up an impeachment by contradiction and how the impeachment evidence comes before the jury even though it is not otherwise admissible.

An excerpt from the blog: “the introduction of the prior conviction evidence was “authorize[ed] under FRE 607 as impeachment by contradiction. After the defendant testified about a particular fact, the government could show that “the defendant lied as to that fact.” Gilmore, __ F.3d at __ (citing United States v. Greenidge, 495 F.3d 85, 99 (3d Cir. 2007) (no error in prosecution cross examination of bank fraud defendant about consumer and criminal complaints made against her in light of her volunteered denial that any such complaints had been made against her)).

Paul Luvera has another great post on his outstanding blog, Plaintiff Trial Lawyer Tips. 

A sample:  "Focusing on the bad conduct of the defendant shifts the availability bias and causes the defendant to be the subject to the greater weight of scrutiny instead of plaintiff. Start with defendant’s conduct."

Enjoy.

Professionally speaking, it is hard to have a worse day than having a United States Supreme Court justice say this:  " “I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”

That is what Justice Souter said to Jennifer Smith, a lawyer in the Tennessee Attorney General’s Office.

Read more here.

Ten days or so ago I included a post from Paul Luvera’s blog about the importance of using checklists for taking the deposition of an eye witness.

Here is another post from Paul.  This time he is sharing a checklist on information you should share with your client about the trial process.    It includes suggestions for how the client should act during the trial and how to act during cross-examination.

Thanks again, Paul.

Paul Luvera has offered-up a list of his talking points for trial, an example that can be applied to a myraid of cases.  See them here.

The age old question:  should I try it or accept the offer the defense has made?

This article in the New York Times reports on an article that will appear in the September edition of the Journal of Empiral Legal Studies on the subject on settling cases.  The article will address  a study of 2,054 cases that went to trial from 2002 to 2005.  The bottom line:  "“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,’ said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions. "

The NYT article goes on to say as follows:  "Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered."

Smart defense counsel admit liability in cases where liability cannot seriously be questioned.

What will defense counsel do to hold the damages number down?  Read about the strategy of one defense lawyer in this article – Defending the Damages-Only Case.   The article is published in the Winter 2008 edition of Federation of Defense and Corporate Counsel Quarterly and was written by Mercer K. Clarke.

Thanks to Trial Ad Notes for telling me about the American Society of Trial Consultants website and, more importantly, about their electronic newsletter,  The Jury Expert.  The newsletter is published bimonthly.  A subscription is free.

You can download past issues here.