Practice, Practice, Practice

Posted on January 13, 2015 04:44 by Andrew DeSimone

As kids, we heard this all the time, from parents and coaches.  “You will never get any better without practice”: from the piano, to baseball, to gymnastics.  Practice builds muscle memory, and without that practice, without that muscle memory, performers and athletes cannot excel, be it at Carnegie Hall or during March Madness.

As attorneys, our jobs require the same attention to practice, practice, practice.  We need muscle memory to help us through stressful or surprising situations that invariably arise in depositions, at court hearings, or at trial.  How do you conduct a successful voir dire? How do you properly impeach a witness with a deposition?  How do you conduct a Daubert hearing to have plaintiff’s expert excluded at trial?  Without it, trial attorneys confronted with a “surprise” cannot adequately represent their clients.  

In a recent blog post, Chris Bottcher, Chair of the Trial Tactics Committee, discussed the major problem facing litigators today: the lack of exposure to trials and other hearings necessary for attorneys to hone their skills. However, the 2015 Trial Tactics Seminar offers a great opportunity for attorneys of all experience levels to practice, practice, practice their litigation skills. Topics include conducting a Daubert hearing, dealing with surprises at trial, how to conduct a successful voir dire, and many, many others.  

The 2015 Trial Tactics Seminar will be held at Caesar’s Palace Las Vegas, March 18–20, 2015. It happens to be during March Madness. So while you learn from leading trial lawyers across the country to help you build the necessary muscle memory to succeed as a litigator, the top college basketball athletes will be putting their skills to the test after years of practice, practice, practice.  The program will be great. It will be a unique opportunity to learn, connect, and grow. Hope to see you there.  

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Categories: Seminar | Voire Dire

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A year ago we published an article in The Whisper titled Please Jurors, Check Your iPhone With The Bailiff (Vol. 7, Issue 2.)  The article discussed the increasingly frequent problem of jurors' use of the Internet to do their own research and the use of social media sites such as Facebook and Twitter to communicate with each other and the world outside of the courtroom regarding the trials in which they serve.  The temptation of a sitting juror to do her own research, or to discuss the case with other jurors or outsiders, has always been there; it is just that the advent of the digital age has made the ability to succumb to temptation so much easier.  Clearly, courts have taken notice of the problem.  Our article last year discussed the nature of the problem and what you, the lawyer, could do to learn of and handle the problem when it occurs.  This article will in turn discuss what courts and legislatures around the country have done, and to suggest what more should be done to combat the problem at its source. 

In the past year, there have been countless stories of jurors tweeting, posting to Facebook, blogging, or doing internet research during an ongoing trial.  In a recent criminal case in California the jury was excused for a Mardsen hearing, which is when a defendant requests a new court-appointed attorney based upon a claim of ineffective assistance of counsel.  During the hearing, which must be held outside the presence of the jurors, several jurors used a cell phone to Google the meaning of the hearing.  The judge found out and was forced to declare a mistrial.  Before releasing the jury, the judge reprimanded the jury and told them the consequences of their actions – that the State would have to pay for a new trial, and that the defendant, who may in fact be innocent, would have to spend the next few weeks in jail awaiting his new trial.  Thus, the judge advised, the State incurred substantial funds and a man lost his liberty, all because the jurors spent less than five minutes on Google during a trial.  Had the jury been better warned, with an explanation of potential risk, the jury may not have committed the misconduct.      

Another example is that of Seth Rogovoy, a Massachusetts juror who was dismissed from a trial in February 2011 for his tweeting during his service.  The tweets included a post which stated:  "I am in contempt of court, de facto if not de jure" and "Sucks that you can't tweet from the jury box. What's the fun in that?"  These tweets show that Mr. Rogovoy both understood that he was not allowed to make the posts and the potential consequence to himself, yet he did so anyway.  After being dismissed by the judge, Mr. Rogovoy stated:  "I never mentioned any of the people: the defendant, the witnesses. I never mentioned the court I was sitting in."  In an interview later given to Bob Gardinier, as reported in the February 9, 2011 Albany Times-Union article Rape trial of ex-priest now before jury: Deliberations set to start in case; juror dismissed after using "Twitter," Mr. Rogovoy stated that, given the popularity of social media platforms like Twitter, judges will be forced to confront them in the courtroom.   In that respect, Mr. Rogovoy is absolutely correct.

In order to prevent further juror misconduct through the use of social media, legislatures need to make it clear that it will not be tolerated, and courts need to instruct juries specifically on the impropriety of discussing or researching regarding an ongoing trial, why it is improper to discuss or research an ongoing trial, and the consequences to the juror if he or she fails to follow those instructions.  This instruction should be made several times throughout the course of a trial, including when candidates are first called for jury duty, before voir dire, at the beginning of trial, before every recess, and before deliberations.  The court must then monitor the jurors as best it can, and follow through with the threatened punishment.  Most courts are now doing something about the social media, and in fact most of these suggestions are being followed by at least some jurisdictions.  However, no jurisdiction has yet put them all together in a comprehensive effort to combat the social media problem.  Without a strong message that juror misconduct is impermissible, the problem will only get worse.

More than half the state and federal courts now have jury instructions that at least make a passing mention of the internet when advising jurors or prospective jurors on the prohibition of performing outside research or discussing an ongoing case.  This is a good first step, as many of the jurors who have made social media postings in the past have relayed that they did not understand this to be a "discussion" which was prohibited by the rules.  For this reason, it is important that the instructions make more than a mere passing reference.  Rather, the instructions should be as specific as possible, mentioning sites such as Facebook and Twitter (or whatever the prevalent form or social media of the day happens to be).  At least then, the rule itself will be clear to the jurors.

Additionally, the most effective jury instruction not only gives the rule, but also explains the reasons behind the rule.  While lawyers understand that some evidence is inadmissible for one reason or another and will not be known to the jury, many laypersons have a different view.  They see lawyers and judges as keeping information from them that they need to know.  Thus, not only are they curious, but many believe that they must know all the facts in order to be the best juror they can be.  It is also important, as many model instructions now realize, to give the jury the reasons so that they understand that it is important that they follow the rules.  Just as important is to advise the jury of the consequences to the courts and parties if they do not follow the rules, and the likelihood of a mistrial. 

Often these instructions are repeated in one form or another several times throughout the trial.  This, coupled with a recitation of the policy reasons underlying the instruction, will provide the jury with a constant reminder of the prohibition and sound basis for not falling to temptation.  While it may seem repetitive, the ease with which a person in today's world can pull out their cell phone and record a status update which can jeopardize the entire trial necessitates the constant reminder as seen in the examples above.

In San Francisco County, in response to a jury pool of over 600 that was dismissed in 2009 following the realization that they had all researched a high-profile case prior to voir dire, the court takes a more aggressive approach.  Prospective juries are given a questionnaire with a cover sheet that states in part: 

You are ordered not to discuss this case with anyone; do not allow anyone to discuss the case with you. The only information you may tell anyone is that you are in a jury pool for a trial and the time requirements of that trial. You are also ordered not to read, listen to, or watch any news, Internet, or other media accounts of this case, past or present. You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information. (CCP §1209(a)(10))

In addition to the instruction on prohibition, there must be consequences for a juror's willful disobedience of the rules.  There are many individual instances where a judge has held a juror in contempt of court for violating the prohibition on research and discussion, and held hearings.  This may need to be a more frequent and publicized occurrence to stem the growing problem.  California recently passed a new law, AB 141, which went into effect on January 1, 2012, that makes a willful violation of the prohibition on research or use of social media punishable by not only civil contempt, but also makes it a misdemeanor.  See Cal. Civ. Proc. Code § 1209(a)(6); Cal. Penal Code § 166(a)(6).  In addition, the bill amends current law and requires that the jury be specifically instructed, before trial and before recesses, on the prohibition of research or dissemination of information, in all forms including electronic and wireless.  See Cal. Civ. Proc. Code § 611; Cal. Penal Code § 1122.  If anything, the bill does not go far enough.  For instance, it could require offending jurors to pay for the consequences of their action, including the re-trial of the case if necessary.

While several judges in California and in other jurisdictions have taken it upon themselves to hold a juror in contempt for prohibited conduct, including the use of social media or performing internet research, the California Legislature's codification of this violation as not only civil contempt, but also a misdemeanor, is a step in the right direction.  However, while California's new law requires the judge to advise juries regarding the prohibition on internet research and use of social media, it does not require the judge to instruct the jurors on the consequences of their actions if they fail to follow the rules.  This too is important.  While advising the jury of the reasons behind the rule appeals to their sense of civic duty – the carrot – advising the jury of the consequences of failing to adhere to the instruction lets the jury know that there will be real punishment – the stick.  Both the carrot and the stick are necessary in order to have the best chance of strict adherence to the rules.

Finally, not only is it important that there be a law in place for handling a juror's violation and that the jury be advised of that law.  The law must be enforced, possibly by the district attorneys as a misdemeanor rather than the judge as civil contempt.  The instruction could also contain a request that the jurors report to the court if they know or suspect that one of their co-jurors may be violating any of these orders, which would in essence be self-enforcement.

Other courts have experimented with the prohibition of cell phones in the courthouse for everyone, or at least for jurors.  Indiana, for instance, requires the bailiff to collect and store computers, cell phones and other electronic communications devices prior to deliberations.  This rule was implemented after the Indiana Supreme Court considered a case wherein a juror took a cell phone call during deliberations.  There, the Indiana Supreme Court wrote:  "We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice….The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation."  Henri v. Curto, 908 N.E.2d 196, 202-203 (Ind. 2009).  Although helpful for times when the jurors are actually at the courthouse, this solution may not provide much in the way of curbing the practice of Internet research and social media discussions after hours, unless the jury is sequestered for the entire trial.

Our jury trial system is dependent on the jurors who are privy only to the evidence admissible in court, instructed on the law solely by the judge at the conclusion of the evidence and who have not been predisposed to outside opinions or discussions of the case before deliberation with their fellow jurors.  While no solution is perfect, it is clear that courts, legislatures, and lawyers must do more to halt the increasing episodes of juror misconduct. 

Tom D'Amato is a shareholder with Murphey, Pearson, Bradley & Feeney in San Francisco.  

Adam Koss is an associate with Murphey, Pearson, Bradley & Feeney in San Francisco.  

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Voir Dire in Civil Cases

Posted on February 5, 2009 04:40 by Robert B. Clemens

Conventional wisdom has it that a “good” voir dire is equal parts of (1) rapport-building; (2) information gathering; and (3) conditioning (or information providing).

The threshold source of information on each juror is, of course, the jury questionnaire. In some counties, one can expect the questionnaires to be delivered with the jurors, and there is a flurry of activity as counsel whip through the papers with a highlighter to try to identify the demographic factors which reflect the attorney’s own biases as to what makes a “good” or “bad” juror for any particular case. In other counties, one may be able to arrange to receive a packet of jury questionnaires as much as a week before the trial. The questionnaires often provide a good deal of information: age, marital status, occupational history, prior jury experience, and information regarding prior accidents, claims and litigation.

Rapport-Building is not a separate segment of the jury selection process, but begins with everything you do and say to create a good impression with the jury. It starts with how you dress yourself and your client; how you, as counsel, and your client present yourselves to the jury; and continues with everything you say and do in the context of the trial. Jury selection is your only chance to make a good first impression.

I deliberately downplay any suggestion that I will pry into the jurors’ “biases” or “prejudices,” and instead invite them to discuss with me any “preconceived ideas” or “notions” which they may have brought to the courtroom. I like to tell them that there is nothing at all wrong with having preconceived ideas – it may simply mean that they are not the best jurors to hear a particular case.

The way we ask questions of jurors will affect their perception of each of us as lawyers, and inevitably will reflect upon our clients, as well. The questioning must necessarily be as polite as possible, and our responses to even adverse commentary from the jurors need to be met with outward appreciation and polite closure. A potential juror may have just told you that he or she does not think much of lawyers, in general, and lawyers who represent clients like yours, in particular; and the real challenge is to say (sincerely): “Thank you for your candor, Mr. Brown.”

Procedurally, I prefer to begin by asking general questions of the venire, which are more in the nature of “conditioning” or “information providing,” asking for specific responses by a show of hands, and will then make sure that I have the opportunity to speak individually with each juror, either focusing on information provided by the questionnaire or on general questions which might assist me in determining whether or not the juror is appropriate for striking. During that entire process, however, the most important thing is to be self-deprecating, polite, and as empathetic as possible, so that the jurors will not dislike you more than opposing counsel.

I have a series of “stock” questions which I tend to ask of jurors as a group, each of which is intended to prepare them for service as jurors. If defending, for example, I will often ask if anyone has “already” decided how the case is likely to turn out, based on the questions posed by plaintiff’s attorney? I follow that with questions intended to communicate the difficulty I have as defense counsel in “following” the plaintiff’s counsel, who always “goes first.”

If there are “bad facts” that you know will likely be offered into evidence, try to condition the jurors to hear those bad facts by discussing them in general terms in voir dire. Voir dire is also an opportunity to discuss “good facts,” and if there are jurors who are empathetic to your client or the situation at issue, you may be able to draw out favorable information from the potential jurors that will effectively communicate arguments that you would not be free to pose yourself in the context of jury selection.

Information Gathering
Here is where many trial lawyers go awry. I often see attorneys working hard to identify the jurors they believe will be helpful to their case. The result, of course, is that they have helped me identify jurors who I believe should be stricken. The key is to remember that your mission is to “de-select” jurors who are less likely than others to decide the case favorably to your client.
A useful exercise to prepare for jury selection is to outline the qualities of the jurors you want and don’t want, and then make sure your questions are designed to elicit responses from the jurors you do not want. A question that is too “balanced” may help your opponent identify the jurors you would otherwise want, so the trick is to design questions that are more likely to help you in your jury selection than to help your opponent in hers.

Purely as a matter of courtesy and rapport-building, the lawyers should work to end each conversation with an individual juror in such a way that neither the juror nor his fellow jurors feel that you have any disrespect for the juror’s views, or for the juror as a person, as a result of his or her candor. You can thank the juror for being frank, make sure that you have come to “closure” with the juror, and move on, without necessarily validating the juror’s views.

Juror Disqualification
Any fool can exercise a peremptory challenge, but the real art in jury selection is persuading the judge to excuse “for cause” a juror whom you feel ought to be disqualified from hearing your case. I try to have the juror agree that it would be difficult for them to consider a case such as the one which has been described to them, or commit to an agreement that they would not want a juror with their notions or preconceived ideas considering this case if they were in the shoes of my client. I typically turn to the judge and “ask that Ms. Doe be excused for cause, given her concerns about her ability to be fair to my client.” I shudder whenever I hear a lawyer turn to the judge and ask “that juror number 5 be stricken for cause,” as it gives all of the jurors the impression that the bailiff might just unholster his pistol and take care of the matter on the spot. Even assuming the challenge for cause is sustained, that attorney has likely made it difficult to obtain candid responses from the “surviving” jurors.

These precepts are not easy to master, but lawyers who have these techniques firmly in hand can be confident that they are taking fullest advantage of their one chance to make a good first impression upon the jurors who will decide their cases.


Robert B. Clemens
Bose McKinney & Evans
Indianapolis, Indiana

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Categories: Voire Dire | Jury Selection

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