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Today, we want to take a moment to highlight the Civil Jury Project at the NYU School of Law. This group examines how the civil jury trial became a vanishing feature of the American legal landscape and looks at the consequence for the legal system and society more broadly. The Civil Jury Project includes practicing attorneys, academics, trial consultants, and others interested in the future of the civil jury trial.

Recently, a nationwide attorney survey was completed by members of the American Society of Trial Consultants in an attempt to gather information on what is causing the decline of the civil jury trial and what recommendations practicing attorneys have to help save the future of the civil jury trial.

Here’s how the survey is described in the free report:

This survey addressed the current involvement by attorneys in jury trials, how they viewed the decline in jury trials, their perceptions of the causes for this decline, their experience with jury trial innovations, and what (if anything) they thought could be done to increase the number of jury trials.

We encourage you to read this initial report from the Civil Jury Project and the ASTC and see what this interdisciplinary group is seeing, recommending, and planning.

Here is the full text of the announcement from the ASTC:

“We are pleased to announce and provide original research produced by ASTC members for a worthy cause. ASTC would like to recognize the following members who recently completed an important survey on the current state of civil trials for CJP at NYU School of Law.

Charlotte A. Morris, M.A. (Project leader)

Tara Trask

David Barnard

Jeffery T. Fredrick, Ph.D.

C.V. “Pete” Rowland, Ph.D.

Susan Macpherson

With a special thanks to Stephan D. Susman Esq. and Richard Jolly.

The Civil Jury Project is engaged in an empirical assessment of the current role of the jury in our civil justice system, the reasons for its decline, and the impact of that decline on the functioning of the civil justice system overall. The basic question is whether jury trials continue to serve the role anticipated by the Framers of the Constitution. Relatedly, it is important to examine the consequences of the decline and what other institutions may currently fill the void.

To help understand the current state of civil jury trials, the American Society of Trial Consultants (ASTC), as part of the Trial Consultant Advisory Group of the NYU School of Law Civil Jury Project, conducted a survey of lawyers who try cases in state and federal courts across the country.

This survey addressed the current involvement by attorneys in jury trials, how they viewed the decline in jury trials, their perceptions of the causes for this decline, their experience with jury trial innovations, and what (if anything) they thought could be done to increase the number of jury trials.

Learn more about CJP/NYU and our work with them in their monthly newsletter.

Citation: Civil Jury Project. (2016). Summarized Results and Recommendations 2016 Attorney Survey: Declining Civil Jury Trials.”

We at Keene Trial and The Jury Room blog hope you will read this report and stay abreast of this important work to address the shrinking civil jury trial and, ultimately, improving our litigation advocacy.

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We are now in ABA’s Blawg 100 Hall of Fame!

Monday, November 30, 2015
posted by Douglas Keene

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We’ve recently been informed that The Jury Room has been inducted into the ABA Journal Blawg 100 Hall of Fame! Okay, it’s not a Pulitzer, but we are wildly happy about it. To our way of thinking, it is the greatest honor The Jury Room could be given. We appreciate the recognition. Closer to truth, we are shocked. Every December from 2010-2014 we have been delighted to be included in the Blawg 100, but this was not even on our radar screen. Here’s a link to the 2015 ABA Blawg Hall of Fame and a link to the 2015 Blawg 100 honorees.

Here’s how the ABA describes the Blawg 100 Hall of Fame:

In 2012, we established the Blawg 100 Hall of Fame for those blogs which had consistently been outstanding throughout multiple Blawg 100 lists. The inaugural list contained 10 inductees; this year, we added 10 more, bringing the total to 40.

And here is how they described this blog on their roster:

Trial consultants Douglas Keene and Rita Handrich find the research to alternately back up what you think you already know about human psychology (Is rudeness contagious? Yes.) and alert you to the unexpected (Are “beer goggles” real? No.) Posts are both fascinating reads and lessons on how not to base your cases on stereotypical assumptions.

We were inspired to begin blogging by Anne Reed (formerly of Deliberations blog and now leading the charge at the Wisconsin Humane Society). Once we got started blogging, we realized it was a wonderful way to keep up with the changing literature and to share what we were learning along the way. Looking back over the 900+ posts, we still find it interesting to blog as well as a great impetus for our own continuing education. Thank you, ABA Journal, for your recognition of our work over the last 6-1/2 years.

Doug and Rita

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exploding head syndromeI do not recall ever having heard of this sleep disorder before but apparently it is much more common than previously thought. At least by me, since to me it sounded like a”Jackass” stunt. This is an actual sleep disorder in which you are suddenly awakened by a loud sound akin to an explosion but there is no external noise in your environment. It is literally like an explosion in your head.

Here’s what the Daily Mail had to say about what exploding head syndrome is:

It’s estimated between 10 and 20 per cent of people have experienced this bizarre condition, in which a person is woken up by an abrupt loud noise they soon realize is imaginary, a study found. The phenomenon strikes as a person is dropping off to sleep. And the type of noise can vary from explosions and fireworks to slammed doors, the sound of a gun firing, an enormous roar, shouting, thunder or a crack of lightning. The noises start suddenly and last for a few seconds, and some people also experience visual disturbances, such as seeing lightning or flashes. The condition stops people from sleeping and leads to other psychological problems as they sometimes believe they are having a seizure or being attacked, experts said. For some, the condition is so bad it significantly impacts their lives.

Previously, the disorder was thought to occur in people over the age of 50 years old but a new study shows it also occurs in 18% of college students—that’s almost 1 in 5 young adults! And almost a third of those that had exploding head syndrome also experienced isolated sleep paralysis (awakening and being unable to move for anywhere from a second or two up to a couple of minutes). The author says that as people with exploding head syndrome disorder attempt to make sense of their experience, they can sometimes think they are having “a seizure or a subarachnoid hemorrhage”. Or, says the author, “Some people have worked these scary experiences into conspiracy theories and mistakenly believe the episodes are caused by some sort of directed-energy weapon”.

The researcher interviewed 211 undergraduate students (average age 19.7 years; 70.6% female; 59.5% White, 10.5% Hispanic, 9.1% Asian, 8.6% African-American, 1.0% Native American and 11.4% mixed-ethnicity or other) using the Fearful Isolated Sleep Paralysis Interview and the Exploding Head Syndrome Interview (which the author developed so it is not yet available online). Administration time for these interviews is about 20 minutes each. Here are some of their findings:

18% of the sample (of 211) were found to have experienced exploding head syndrome at least once and 16.6% had experienced it repeatedly.

Exploding head syndrome was equally experienced by men and women. (In previous samples of older people, exploding head syndrome was more common among women. The researcher thinks perhaps it becomes more common as women age.)

Exploding head syndrome was more commonly found in those also reporting fearful isolated sleep paralysis (41 participants in this sample).

The overall level of fear/severity during the experience of exploding head syndrome was moderate but some people (2.8%) experienced clinically significant distress and/or impairment in functioning.

Obviously, this would be a very frightening thing and those who experience it are often very secretive since they think they might be crazy (having never heard anyone else talk about it). There is no treatment, although one of the medications prescribed for it can “turn the noise down” so it is not as frightening. A case study on a 57-year-old Indian male says that simple education and reassurance could be sufficient to decrease reactions to the experience.

From a litigation advocacy perspective, this is an example of an odd phenomenon that is very real and more common than previously thought. Listening without judgment to (even unusual) reports of odd experiences from potential or existing clients can go a long ways toward building rapport. While there are likely times the reports will exist only in the other person’s mind, this is an identifiable condition that is “all in their head”—just not in an imagined way.

Sharpless BA (2015). Exploding head syndrome is common in college students. Journal of Sleep Research PMID: 25773787

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TJE_logoThe August issue of The Jury Expert is up and we think you’re going to want to see this. Here’s a rundown of the articles you’ll find at the website.

Demographic Roulette: What was once a bad idea has gotten worse. Authored by Doug Keene and Rita Handrich with a response from Paul Begala, this article takes a look at how the country has changed over the past 2 decades and our old definitions of Democrat or Republican and conservative or liberal are simply no longer useful. What does that mean for voir dire? What should it mean for voir dire? Two very good questions those.

If it feels bad to me, it’s wrong for you: The role of emotions in evaluating harmful acts. Authored by Ivar Hannikainen, Ryan Miller and Fiery Cushman with responses from Ken Broda-Bahm and Alison Bennett, this article has a lesson for us all. It isn’t what that terrible, awful defendant did that makes me want to punish, it’s how I think I would feel if I did that sort of terrible, horrible awful thing. That’s what makes me want to punish you. It’s an interesting perspective when we consider what makes jurors determine lesser or greater punishment.

Neuroimagery and the Jury. Authored by Jillian M. Ware, Jessica L. Jones, and Nick Schweitzer with responses from Ekaterina Pivovarova and Stanley L. Brodsky, Adam Shniderman, and Ron Bullis. Remember how fearful everyone was about the CSI Effect when the research on the ‘pretty pictures’ of neuroimagery came out? In the past few years, several pieces of research have sought to replicate and extend the early findings. These studies, however, failed to find support for the idea that neuroimages unduly influence jurors. This overview catches us up on the literature with provocative ideas as to where neurolaw is now.

Predicting Jurors’ Verdict Preference from Behavioral Mimicry. Authored by Matthew Groebe, Garold Stasser, and Kevin-Khristián Cosgriff-Hernandez, this paper gives insight into how jurors may be leaning in support of one side or the other at various points during the trial. This is a project completed using data from actual mock trials (and not the ubiquitous undergraduate).

Our Favorite Thing. We often have a Favorite Thing in The Jury Expert. A Favorite Thing is something low-cost or free that is just fabulous. This issue, Brian Patterson shares the idea of mind mapping and several ways (both low-tech and high-tech) to make it happen.

The Ubiquitous Practice of “Prehabilitation” Leads Prospective Jurors to Conceal Their Biases. Authored by Mykol C. Hamilton, Emily Lindon, Madeline Pitt, and Emily K. Robbins, with responses from Charli Morris and Diane Wiley, this article looks at how to not “prehabilitate” your jurors and offers ideas about alternate ways of asking the question rather than the tired, old “can you be fair and unbiased?”.

Novel Defenses in the Courtroom. Authored by Shelby Forsythe and Monica K. Miller, with a response from Richard Gabriel. This article examines the reactions of research participants to a number of novel defenses (Amnesia, Post-Traumatic Stress Disorder (PTSD), Battered Women Syndrome (BWS), Multiple Personality Disorder (MPD), Post-Partum Depression (PPD), and Gay Panic Defense) and makes recommendations on how (as well as whether or not) to use these defenses.

On The Application of Game Theory in Jury Selection. Authored by David M. Caditz with responses from Roy Futterman and Edward Schwartz. Suppose there was a more predictable, accurate and efficient way of exercising your peremptory strikes? Like using a computer model based on game theory? In this article, a physicist presents his thoughts on making those final decisions more logical and rational and based on the moves opposing counsel is likely to make.

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spite voodoo dollWe’ve been down this road before and brought you the Depravity Scale, the Comprehensive Assessment of Sadistic Tendencies Scale, the Guilt and Shame Proneness Scale and the Islamophobia Scale. Now however, it’s time for a check on how spiteful you are. We all know spite when we see it. Dawdling in their parking space because someone is hovering, waiting to get in. Deliberately slowing down on the highway to irritate a tailgater. Spreading gossip that is perhaps less than wholly true because a co-worker angered you. My mother described it as “cutting off your nose to spite your face”. The list is endless. There is even an old Eastern European folk tale where a genie offers a man anything he wishes–providing his hated neighbor gets double the prize. And the spiteful man says, “Genie, put out one of my eyes.” Spite has been with us a long, long time. But now, it is possible to measure one’s spitefulness. Scientifically. In case we want to. Researchers have recently published a 17-item measure of spitefulness. As they developed the scale, they learned some interesting things.

Men are more spiteful than women.

Young adults are more spiteful than older adults.

Ethnic minority members were more spiteful than members of ethnic majorities.

And spitefulness is often accompanied by aggression, psychopathy, narcissism, callousness [low empathy and low kindness], Machiavellianism, guilt-free shame and poor self-esteem. (This one did not come as a surprise.)

However, spitefulness does not tend to co-exist with agreeableness, conscientiousness, self-esteem, or a tendency to feel guilt.

When we are upset, like about partisan politics (when our candidate is losing) or going through a bitter divorce–even agreeable people may have spikes of spitefulness. The authors describe spiteful suicides (intended to traumatize the person who finds them) and spiteful suicides meant to look like homicides framing someone toward whom they (obviously) felt anger and spite. They describe suicide bombers as motivated to get revenge on a hated enemy. Spiteful people are angry. Even if the anger becomes self-destructive. The researchers think the scale is useful in predicting behavior in laboratory settings but also in everyday life (where they see it as contributing to diagnoses of personality disorders and oppositional defiant disorder). They also casually mention applicability to the legal domain where spite has been defined as “the willingness of a litigant to reduce his payoff in order to reduce his opponent’s payoff”. These people would be difficult to mediate with, since they define their self-interest largely in terms of how much distress they can cause the opponent, rather than how much benefit they can achieve for themselves. You can look at the article itself for information on scale development (we will tell you it was scientifically sound) but here, we are skipping right to some sample items because we know you are curious. The scale is only 17 items long and here are a few of the questions used to measure spite.

If a neighbor complained that I was playing my music too loud then I might turn up the music even louder just to irritate him or her, even if it meant I could get fined.

There have been times when I was willing to suffer some small harm so that I could punish someone who deserved it.

I would be willing to take a punch if it meant that someone I didn’t like would receive two punches.

I would consider tapping on my brakes to scare a driver who was tailgating me.

And so on. The idea is that the more items endorsed in a spiteful direction, the more spiteful the person. That makes sense. It is probably true that most of us can be spiteful from time to time, but we know we are being naughty or dumb even while we do it. We don’t embrace it as a life strategy. The question is how often and whether it is a staple of our character. It’s an interesting idea and an intriguing scale to consider. Whether people high in spitefulness are more litigious is a question for future research but it’s an interesting concept to consider as you listen to that new client or applicants for an opening at your firm. Marcus DK, Zeigler-Hill V, Mercer SH, & Norris AL (2014). The Psychology of Spite and the Measurement of Spitefulness. Psychological Assessment PMID: 24548150 Image

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