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Smell-TestMock jurors often say to us that some bad fact in the case narrative “doesn’t pass the smell test”. Of course, in hindsight, it’s always true. And ‘in the moment’ it is sometimes true as well. Sometimes we fall for those fabulous, no-strings-attached deals and other times it is transparently obvious that something suspicious lurks behind that fabulous opportunity. Like this ad on Austin’s CraigsList that rings the bell loudly on the suspiciousness meter:

Housing for awsome female roommate (north central austin)  

Times are tough and I would like to help you with housing in Austin (Hyde Park). Perhaps you are having a career change and find you are inbetween jobs. Maybe you are having a relationship change and need a port in a storm. I can understand lifes up and downs as been there and done that. I’m a SWM-60 and just want to help. There is no catch to this-just a guy who has time and experience in life. You might find I’m thoughtful, caring, and responsible with a generous heart. Write me and take care, Jack.

While “Jack” may just be a nice guy (who cannot spell well), it is apparent he rang the suspiciousness meter with a number of CraigsList readers since he posted again about two weeks later taking out the reference to going through a relationship change. So how come, so often, people fail to pay attention to ‘too good to be true’?

According to our mock jurors (who may be onto something) creepy deals typically involve money, power, or sex. In one recent mock trial, the mock jurors were at a complete loss to explain the machinations of a person who kept popping up in the periphery of a lawsuit with international parties suing each other. By the end of the story, the jurors’ suspicions were on high alert every time a witness had any connection with the shadowy figure.

In that case, the timeline demonstrated the proximate relationship the suspicious individual had with those responsible for the contracts in dispute. In other cases, the smell test was failed because of terrible performance by witnesses (“How could you have trusted that guy!”) in videotaped depositions.

But typically we don’t have new clients unless someone did make a bad decision (or maybe even more than one!). So then it’s about how you structure the case narrative to minimize the impact of that bad decision. Regardless of how you decide to tell the story, remember the smell test. You don’t want your explanation of why bad things happened to fail the smell test as well and thus backfire on you.



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ABA Blawg 100!

Monday, November 29, 2010
posted by Douglas Keene

We are proud and honored to have been chosen for the ABA Blawg 100 List. It is a list of the top blogs across each of 12 categories. Now the voting is underway for the best blogs within each of the ten categories. We would appreciate your voting for us one more time here.  You only have until December 30 so do it now to avoid the holiday rush! [You’ll have to register at the ABA site with your email in order to vote.]

We write this blawg to truly reflect how we think about case strategy, witness preparation, current events and current research–all viewed through the lens of litigation advocacy. Consistent posting, even when we are buried in work, has been our goal. And to our surprise, preparing blawg posts gives back energy in the form of intellectual stimulation and new perspectives on this work that we love. We hope you have found our blog useful, informative, and sometimes even fun! It’s our belief that when you give good things away–you get good things back. A listing in the ABA Blawg 100 is a good thing for sure.

We’ll keep on posting. We hope you will keep on reading! And we hope (naturally) that you will vote for us here to simply reinforce us for working hard.


Rita and Doug


In Praise of Coffee: It’s powerful stuff

Wednesday, September 9, 2009
posted by Rita Handrich

starbucks mugThere have long been rumors about the benefits of coffee (and of course the risks, but this is all about the good stuff). Drink coffee and lower your risk of diabetes, Parkinson’s, colon cancer and dental cavities! And get this, the more you drink the more protection you have. Somehow I missed this study and have been limiting my caffeine intake. New research out this week means those days may be behind me!

I saw a study this week on how increases in the number of Starbucks in a neighborhood are associated with a decrease in crime. The article cites gentrification as the reason. Hmmm. I wonder. I remember the Starbucks shooter but Starbucks is listed as evidence of gentrifying along with ornamental grasses, three colors of paint rather than two on houses, artists and gelato. Starbucks does our neighborhood analysis for us?  So, hello Starbucks and neighborhood pride, goodbye urban decay and violent crime?

Another study out this week talks about how hot coffee can influence how much we think we like someone. A new study in the journal Psychological Science shows that we like people more when we’re holding a hot beverage. The authors link this to our use of metaphorical language such as “she gave me the cold shoulder” or having “warm feelings” toward someone.  Maybe a café Americano says “welcome” better than a rum and coke.

While it certainly is true that I am much less irritable after I’ve hit my neighborhood Starbucks, maybe it also means I’m less prone to violence and more genial when I’m sipping my favorite (venti skinny vanilla latte) hot drink.  But I’m not sure I buy that coffee is that powerful. Still, I’ll pay more attention to my assessments of others when I have a hot as opposed to a cold drink!

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