by Jeri Kagel, M.Ed., J.D.
Trial Synergy, LLC
www.trialsynergy.com

Wikipedia tells us that the term “Spring Cleaning” may date back to the Iranian Norouz – the Iranian New Year, which takes place on the first day of spring. The Iranian practice of Khouneh Tekouni (literally means “shaking the house”) or “complete cleaning of the house” is commonly performed before Norouz.

When I hear the phrase “Spring Cleaning” I am reminded that it is time to put my winter clothes away and take spring clothes out, to look through drawers and cabinets to decide what needs to be kept and what needs to be thrown out and to start scrubbing places always hard to get. For some reason, this time of year and this event (spring cleaning) also motivates me to take on projects around the house – painting a room, staining outside steps (this year’s project), or, admittedly, less often, doing something with the load of “stuff” we have amassed in the basement. With regard to my business, I often think of this as a time to get my affairs (billing, papers, even phone calls) in order.

What about litigation? What can this Litigator’s Playbook offer you regarding “spring cleaning”? Cleaning and organizing are the two areas associated with spring cleaning; both apply to litigation.

by Jeri Kagel, M.Ed., J.D.
Trial Synergy, LLC
www.trialsynergy.com

I recently polled a jury sitting on a criminal case. The jury deliberated and remained deadlocked for more than two days. They were a hung jury until the Allen charge, and then announced a guilty verdict.

Here’s what I learned from jurors:

1. This jury, like many of the juries we have heard about recently (the Casey Anthony trial being the most publicized and perhaps the most conflicted), were uncomfortable with a variety of things they learned about the defendant – they thought he was guilty of something, yet they believed the prosecution had not “proven their case beyond a reasonable doubt.”
2.  “Proof beyond a reasonable doubt” meant, to this jury, something different than proving the elements of the crime. It meant conveying a story that taught them everything about the facts they were hearing. For them, it meant a story that did not leave them with unanswered questions or “holes” to fill in.
3. When these jurors were left having to think “why” or “how” things happened in the facts leading to the charge or in how the story was presented at trial, jurors came up with different “justifiable” reasons. For jurors leaning toward “guilty,” understanding the rationale of those leaning toward “not guilty” strengthened the argument that the prosecution had not met its burden and led to the guilty verdict.

Here are some suggestions that can help regardless of whether you begin the trial having the burden of proof or if the burden shifts to you during trial:

by Jeri Kagel, M.Ed., J.D.
Trial Synergy, LLC
www.trialsynergy.com

Using demonstrative evidence has always been an important way for trial lawyers to highlight their point(s) or help contradict the opposing side’s story. Whether the demonstrative aid consists of words or pictures or is the actual object that you want to bring into evidence, now, more than ever, the use of demonstrative evidence must take into consideration the ways technology has influenced our lives.

Although “patience” may still be a virtue, people are becoming more easily frustrated when something does not happen quickly and are less likely to “stick with it” when they do not understand something quickly. “Fast food restaurants” and “drive thru’s” are considered slow if there is a line inside or out and Internet servers are slow if it takes more than a few seconds to load a page. TV remotes or DVRs are becoming necessities so we can change channels when we do not want to watch commercials or to help us move between different shows when we want to watch more than one. DVRs allow us to watch what we want to watch regardless of when the program was scheduled to be seen.

And yet – walking into a courtroom is like walking backwards in time. Our trials continue to rely primarily on the spoken word. As our jurors get younger, this phenomenon – the difference between our need for speed and immediacy to stay engaged versus the more methodical, sometimes plodding, nature of trials – makes keeping jurors engaged and willing to learn a more difficult task.

Using demonstrative aids can bridge the gap! But only if used well and only if you understand how people learn.

1. Only use what you know:
Having the best, most advanced equipment will not serve you well if you do not know how to use it and use it quickly. Trying to get your program on the screen while fumbling around or being unable to get the image loaded swiftly is, today, similar to the disheveled attorney unable to find anything in his files. The more often you fumble, the more you lose their interest and their good will. Practice ahead of time!

by Jeri Kagel, M.Ed., J.D.

Trial Synergy, LLC
www.trialsynergy.com

I want to share with you some research that I read recently that was done to demonstrate how a juror’s (psychological) “sense of entitlement” impacts decisions on damages. Simply stated, when one has a sense of entitlement, one feels that he or she has the right to some benefit. Entitlement is psychologically different from desirability. Each of us, just by virtue of living, deserves the good that life can bring us. Thinking “I’m entitled” often comes without a sense of responsibility or thoughtfulness.

by Jeri Kagel, M.Ed., J.D. Trial Synergy, LLC www.trialsynergy.com When I was in graduate school we were told that as therapists we would need to develop our ability to understand what our clients were saying so that we would be…

by Jeri Kagel, M.Ed., J.D.
Trial Synergy, LLC
www.trialsynergy.com

Litigators caution clients and witnesses to observe, as jurors do, the court’s directive to refrain from any interactions with members of the jury. We might say hello without engaging in any conversation, we check who is in the elevator to make sure we are not discussing anything case related should a juror be present, and we look away if, as we walk down the hall, we see a juror.