My notes 3

Question 1

Types of challenges for cause

Answer 1

Challenges for cause are unlimited in number, but require specific showings for their exericse. 1) not qualified (lack of qualifications such as required age, unpardoned felony conviction), 2) implied bias (usually enumerated in statute. Involves juror’s relationship to a particular case, party, or witness), and 3) actual bias (ex. exposure to pretrial publicity. The juror can’t be fair to one or more parties).

Question 2

Peremptory challenge

Answer 2

Do not need to be justified by the attorney making the challenge and result in the removal of a juror. These are granted automatically, provided they don’t run afould of the Constitution by being based solely on the race or gender of the prospective juror and thereby constitute impermisible discrimination. These are limited in number.

Question 3

Who conducts voir dire

Answer 3

In state and local courts, the common practice is for the judge to make introductory remarks, and then to ask general questions of the panel and leave it to ccounsel to ask-follow up questions.

Question 4

General questions are usually designed and structured to…

Answer 4

eliminate persons for legal cause (challenge for cause). Thus, general questions concern the juror’s fairness, impartiality, and whether the individual satisfies the legal qualifications for a juror.
ex. Prior knowledge about the case, acquentence with people involved, involvement in similar incident, reason why juror believes they may not be impartial.
These questions are asked of everyone.

Question 5

Specific questions

Answer 5

Adressed to individual prospective jurors.
The primary purpose is to gain information to decide whether grounds exist to exercise challenges for cause or peremptory challenges.

Question 6

struck jury method

Answer 6

Prospective jurors are seated in the jury box and specttator area in the courtroom. Counsel takes turns questioning, making challenges for cause they proceed, and using peremptories at the end to select the final jury.

Question 7

Batson challenge

Answer 7

In a criminal case, neither side may exercise a preerempory challnege based on the prospective juror’s race or gender.

Question 8

Batson process

Answer 8

1) The party objecting to the peremptory challenge must make a prima facie showing that it was exercised based on race or gender.
2) If the court finds that a prima facie showing was made, the burden shifts to the party that wanted to exercise the peremptory challenge to state a comprehensible race or gender neutral explanation that is not discriminatory.
3) The court decides whether the objecting party met its burden of proving purposeful discrimination, considering whether the reason given by the party wanting to exercise the challenge overcomes the discrimination claim.

Question 9

Four objectives of jury selection

Answer 9

1) make a favorable impression on the prospective jurors, including putting them at ease so they will speak freely and reveal pertinent information
2) evaluate the prospective jurors and decide against whom to exercise challegnes for cause
3) gather information from each juror that can be used in deciding whether to exercise a peremptory challenge
4) pursuade the prospective jurors to the attorney’s case theory. This one is educational.

Question 10

What characteristics do you want to project during voir dire

Answer 10

relaxed, pleasant, professional, honest, fair, truth seeking, sincere, well organized, and polite. You want to buidl a rapport with the jury.

Question 11

How to phrase questions

Answer 11

1) make them easily understood so no compound questions, avoid negative phrases, use common words, make them nonrepettive. Mix up words.

Question 12

Jurors names in voir dire

Answer 12

If asking a specific question use their name. Make sure to pronounce it correctly.

Question 13

Other tips for voir dire

Answer 13

connect with jurors, find something in common (tell a story), place yourself in their seat and provide them with what you would want in that sitution, be conversational, be well groomed and in appropriate attire, listen actively (nod, eye cntact, don’t inturrpot, probing follow up questions), manage the discussion (bounce the ball thank you Mr. X, Ms. Y what do you think), and remain nonjudmgenetal.

Question 14

Tigar point of jury selection

Answer 14

One is to get information to know what you’re doing with that juror; the other is to establish a rapport and that rapport means a lot.

Question 15

real time reaction

Answer 15

It is not only the fact of a mistake, the deception or a contradiction that matters to the jury. It is the revelation of the mistake, deception, or contradiction in front of the fact finder that counts the most. It is often the spontaneous real time reaction and demeanor by the witness that tells the jury whether to believe the witness.

Question 16

Ways to impeach

Answer 16

bias, interest, motive, prejudice, inconsistency, omission.

Question 17

mistaken witness vs lying witness?

Answer 17

For the mistaken witness, all will be softer. The tone is gentler. The words in these questions are less challenging. The goals are not to show intentional deceit, but to reveal human errors.
With an intentional lie, a cross-exiaminer’s tone may be harsher, the questions more pointed, and the word choices more severe. The goals of the cross examination are more extreme. The witness must be shown to be falsifying.

Question 18

always impeach consistent with the

Answer 18

theory and theme. Do not impeach if the statement you are impeaching benefits you.

Question 19

What is our ultimate goal on cross?

Answer 19

To persuade

Question 20

effect of a salutation on cross?

Answer 20

You lose the benefits of primacy.

Question 21

What is better than control during cross?

Answer 21

Making the witness look bad.

Question 22

Why short questions

Answer 22

1) the lenght of the question (statement) usually determines the lenght of the answer
2) the long question is stupid, it is compound and the witness doesn’t know which part to ansewr to.
3) Short questions give the witness less room to hurt you.

Question 23

what do good transitions do

Answer 23

Good transitions are useful to the audience because they make clear the though patterns of the speaker and the relationship of evidence to the conclusion it supports. In the form of internal summaries, good transitions aid memory, recall, and undertsanding of the speaker’s material.

Question 24

“understand” “do you understand”

Answer 24

transition question on cross vs direct

Question 25

problems created by open questions on cross

Answer 25

1) It invites the witness to participate in the cross-examination. As a participant, the witness presents in the narrative mode, which enhances his or her credibility. We want witnesses, when we cross-examine them, in the disjunctive (monosyllabic responses) mode, which detracts from their credibility.
2) You lose control of the witness.
c) You abdicate your role as storyteller and the cadence is interrupted.

Question 26

Problem with traditional cross …. isn’t this correct?

Answer 26

You will never be able to do “one word cross” and you sound like a lawyer. it also isn’t a great way to tell a story.

Question 27

Cross examining using staements benefits?

Answer 27

1) easier to be shorter
2) eliminate “legalspeak”
3) best position to tell your story adn to tell it well.

Question 28

Why is objection not a worry with statement method?

Answer 28

Opponents seldom object. They don’t know what grounds to.
b) Judges like this method.
c) staements are proper cross eamiantion.

Question 29

cross report card?

Answer 29

Yes = gold star
No = silver star
I don’t know or I don’t remebmer = bronze.
Anything else is incomplete or negative.

Question 30

train the puppy

Answer 30

Put the puppy into yes mode. Soon they will stop thinking about content, and satisfied that you know everyhting and that this cross-examination is not all that bad, will lock into the “yes” mode. All he has to do is simply anaswer yes and everything goes smoothly.

Question 31

Benefits of “yes”

Answer 31

Train the puppy, gain credibility, telling a sotry.

Question 32

Why not throw in a question to change things up on cross?

Answer 32

Because it creates the opportunity for something to go wrong.
youve also
1) taken them out of puppy mode, 2) witness gets credibility points, 3) you lose right to be the storyteller.

Question 33

positive vs negative statement on cross?

Answer 33

positive. They are easier to understand and more likely to lead to yes.
You drink coffee? With cream? With sugar? Not black?
vs
Yo do not drink your coffee black?
That was the first time meeting him vs you hadn’t met him before

Question 34

If you go for a negative?

Answer 34

Group them together. You get the same benefits.

Question 35

Words to avoid on cross

Answer 35

Conclusive statements like yet, still, so, therefore.

Question 36

legalese on cross?

Answer 36

No.

Question 37

Picking the right term ex.

Answer 37

Defending might call it “accident” opponet will call it a “collission”.

Question 38

Plausibility

Answer 38

The way the jury thinks things were or are.

Question 39

Options of a plausibility statement

Answer 39

Give the witness the option either of simply answering yes, which we can and will accept, or fighting you. Truth be known, you will gain more if the witness fights you.

Question 40

Ex. plausibility

Answer 40

You looked around after you left the bar?
This is what people do when they leave the bar. The jury won’t believe the witness if they say they didn’t.
You would like to avoid jail? Again, jury not going to believe them if they deny this.
You do not want your employer to lose this case?
Making money is important to you?

Question 41

What turns characters, setting, and plot into a tale?

Answer 41

tension

Question 42

How to create tension?

Answer 42

The single most effective way to create tension in a story is to base its theme on two elements that don’t ordinarily go together.
Ex. A can man robs a rich casino owner, vs a con man discovers an honest streak, despite his worst intentions

Question 43

Pith fitting

Answer 43

Putting the essence of a story in terms of a pardoxical or ironic statement, is a great place to start.
I want to tell you what happened on my honeymoon. We’d thought of everything for it–including a bottle of sunscreen that almost ruined it.”

Question 44

Sound symbolizing

Answer 44

Sppons clicking and slopping and customers “I’ll be having.” They had a background soundtrack that makes your audience feel as if it’s there.

Question 45

Desscriptive labels in stories?

Answer 45

Helps the audience better understand and keep track of the characters ex. the barista with the nose ring not jus tthe barista. or even just nose ring

Question 46

personification

Answer 46

Humaizing the nonhuman can lend surreality to your story- a boost when you describe something surreal.

Question 47

Three tools of the defense?

Answer 47

Complexirty, confusion, ambiguity.

Question 48

Why is reasonable basis and prudent isurer a sfae harbor for egregious insurance conudct?

Answer 48

Because they are ambiguous.

Question 49

What happens when the jury applies an ambiguous standard?

Answer 49

First, the jury may be confused. When confused, most prefer to not act. To render a verdict for the plaintiff, the jury needs to be confident so a confused jury is usually a plaintiffs jury.
Second, the jury is free to invent their own definiition of the standard. These definitions tend to benefit the defense.

Question 50

ambiguity probelm

Answer 50

Ambiguous or ill-defined liability standards strongly favor the defense–and many of our most difficult cases involve ambiguous or ill-defined liability standards. The more complicated or confusing the facts, the more difficult the problem.

Question 51

Defining “reasonable basis” and other ambiguous terms

Answer 51

We can’t let the jurors or the other side to define these.
Start by analogy to driving “you would all know how to judge if someone drove in a reasonable manner.” Well, the principles and standards for handling insurance claims are just as basic as commonly understood Rules of the Road for a driving care. To understand this case you have to understand these principles and standards. Then you teach them using a visual enlargmeent.
Then say these aren’t controversial.

Question 52

Rule of the road example to counteract issue is “knew or should have known” in medical malpractice case?

Answer 52

A Rule of the Road is that “A doctor who is doagnosing a patient’s symtpoms has a duty to rule out the most dangerous, treatable potential diseases first.
This is taught in med school.
Know what the person knows (psychodrama)

Question 53

materials for rules of the road

Answer 53

Statutes, court rulings, jury instructions, expert testimony, training manuals, admissions, textbooks, industry guidlines, ethical codes, common sense, etc.

Question 54

What should a rule of the road be?

Answer 54

1) easy for the jury to understand
2) a principle the defense can’t crediblly dispute
3) a principle the defendant has violated
4) important enough in the context of the case that proof of its violation will significantly increase the chance of a plaintiff’s verdict.

Question 55

How do humans make decisions?

Answer 55

Both consciously and unconsciusly. Often, it’s a matter of pure cognitive efficiency. We also tend to process new information through the filter of our own core values and life experiences–a tendency that leads jurors to unconsciously project their own personal biases and preconceived notions onto the evidence presented at trial.

Question 56

People believe they are “reasoning” when they are actually

Answer 56

rationalizing about how to reconcile their strongly held beliefs and emotional commitments with new conflicting information. Such behavior isn’t necessarily irrational because it doesn’t make sense to discard an entire beliefs system, built up over a lifetime because of some new snippet of info.

Question 57

Basic levels of hieracy of thinking

Answer 57

The loweest leves are the most compelling decision making factors because they deal with matters of personal safety. These types of decisions have the greatest potential to unfairly affect juror decion making without juror awareness. Thee intermediate levels encompas sdecisions that are affected by core values and beliefs. The highest level is logic and reason, which we all employ far less frequently then we might imagine.

Question 58

Level one thinking (real or imagined threates to survival)

Answer 58

REact by trying to protect from harm. Fight or flight applied to data.
We may flee from threatening information.
Jurors view facts through the lens of their own primal fears and emotions.
Personally threatened when they hear about bad things that have happened to others.
ex. Injured plaitniff scares juror of possibly injury, they start thinking about how much better they would have behaved then the plaintiff.

Question 59

Level two: Belief in a just world and illusion of control

Answer 59

Jurors presume plaintiff must have done something bad simply because something bad happened to them. They think bad things don’t happen to good people because they have control over that (this is the illusion of control)

Question 60

Level three: Social and cultural beliefs and biases

Answer 60

Not innate but powerful influence. Difficult to appreciate our own biases when shared by everyone around us.

Question 61

Level four: heuristics

Answer 61

Mental shortrcuts or rules of thumb that we use often to make decisions quickly and efficiently.
When info is complex jurors are more susceptible to consistent, predictable thinking errors, which may affect perception of our case.

Question 62

Level five: Fully engaged cognitive reasoning

Answer 62

Few choise require intense thought and effort. No one has unlimited congitive resources. Jurors don’t pay attention to every incredmental detail.

Question 63

We can’t change the way the jurors think…

Answer 63

but we can change what we ask them to think about. If we understand how their minds and memories work, we can better decide which facts jurors are likely to find most persuasive and why.

Question 64

As we think and talk we often slip into the mindsets of three different professions….

Answer 64

preachers, prosecutors, and politicians. In each of these we take on a particular identity and use a distinct set of tools.

Question 65

Preacher mode

Answer 65

We go into preacher mode when our sacred beliefs are in jeopardy: we deliver sermons to protect and promote our ideals.

Question 66

Prosecutor mode

Answer 66

We enter prosecutor mode when we recognize flaws in other people’s reasoning: we marshal arguments to prove them wrong and win our case.

Question 67

Politician mode

Answer 67

We shift into politician mode when we’re seeking to win over an audience: we campaign and lobby for the approval of our constitutentsl

Question 68

Problem with preacher, prosecutor, and politican mode

Answer 68

We become so wrapped up in preaching that were right, prosecugting others who are wrong, and politicking for support that we don’t bother to rethink our own views.

Question 69

Scientist

Answer 69

We move into scientist mode when we’re searching for the truth: we run experiments to test hypotheses and discover knoweldge.

Question 70

confirmation bias

Answer 70

seeing what we expect to see.

Question 71

desirability bias

Answer 71

seeing what we want to see.

Question 72

changing mind in other modes

Answer 72

In preacher mode, changing our mind is moral wekness. In prosecutor its admitting defeat. In politician its flip-flopping.

Question 73

response to cognitive dissonance

Answer 73

Anxiety form it compels us to seek an explanation for what happened: one that will allow us to reconciel teha dverse event with our beleif in a just world. This often leads us to make unfounded assumptions in order to square what actually happend with what we beliv should have happened in a just world.
Interstingly, we often choose to eliminate life’s ambiguiities and injustices by convicing ourselves they don’t exist.

Question 74

Why is it so difficult to reperesnet the plaintiff

Answer 74

No one wants to be one. No one even wnats to imagine being one, particularly in a case involving serious injury, illnes, death, or condition or loss.
Jurors don’t want to believe bad things happen to good people, especially when their is not intent to harm.

Question 75

what helps alleviate cognitive dissonance

Answer 75

assigning blame. and tehy blame plaintiffi. They think of how they could have handled the situation better.
The simplest and most satisfying explanation is often to blame the plaintiff since the defendant ahd no intent to harm her (you can tie all of this into a question about Rules of the Road becuase Rules of the Road do attach blame).

Question 76

How to respond to cognitive dissonance as a plaintiffs counsel?

Answer 76

Congitive dissonace makes jurors eager to allocate fault. They don’t enjoy stress of indecision, so they’re quick–often too quick–to decide what happened and whose fault it was. We need to immediatel blame opposing party for what happened.

Question 77

Who should palintiff lower focus on at start of case?

Answer 77

Jurors tend to criticize what they know most about. If focusing on client jurors will criticize their conduct. If you focus on defendnat, jurors will try to find fault with them instead of our client.
We need to trial to bea bout the opposing party and what he could have or should have done but failed to do, not about our client adn what she did or ididn’t do.

Question 78

Dont’ start the story about a plaintiffs injury with the thunderstorm and falling limb because…

Answer 78

jurors will blame plaintiff for driving and bad weather or attribute to act of God. Instead, begin with failure to cut down the tree.

Question 79

system 1 book

Answer 79

Operates automatically and quickly, with little or not effort and no sense of voluntary control
ex. recognizing that someone is angry

Question 80

system 2 book

Answer 80

allocates attention to the ffortful mental activites that demand it, including complex computaitons. The operations of system 2 are often associated with the subjectve experience of agency, choice, and concentration
ex. difficult math problem

Question 81

Effort required for system 1

Answer 81

They occur automatically and require little or no effort.
ex. driving on empty road, reading words, 2+2

Question 82

How we learend system 1

Answer 82

They include innate skils we are born with to percieve the world around us, recognize objects, avoid losses, orient attention, and fear spiders. Other activities become fast and automatic through prolongued practice.

Question 83

What does system two require

Answer 83

They require attention and are disrupted when attention is drawn away.
ex. focus on a particular voice in a crowded and noisy room, searching memory for a surprising sound, walk faster than normal, fill out tax form, check validity of complex logical argument

Question 84

performance in system 2

Answer 84

In all these situations you must pay attention, and you will perform less well, or not at all, if you are not ready or if your attention is directed inappropriately.

Question 85

Intense focus can make people effectively

Answer 85

blind. EX Gorilla while counting passes between players

Question 86

When is system 2 mobilized

Answer 86

System 2 is mobilized when a question arises for which system 1 does not offer an answer, such as 17*24, or when you are suprised, keeps you calm when angry, and whenever it detects an error about to be made. Most of what your system 2 thinks and does originates in your system 1, but system 2 takes over when things get difficult and it normally has the last word.

Question 87

is System 1 good?

Answer 87

Is generally very good at what it does: its models of familiar situations are accurate, its short-term predictions are usually accurate as well, and its initiatl reactions to challenges are swift and generally appropriate. System 1 has biases, however, system erros that it is prone to make in specified circumstances. It sometimes answers easier questions than the one it was asked, and it has little understanding of logica and statistics. it also can’t be turned off. Ex. If you are shown a word on the screen in a language you know, you will read it–unless your attention is totally focused elsewhere.

Question 88

seeing things more frequently makes

Answer 88

people like them more

Question 89

how do we generate intuitive opinions on complex matter

Answer 89

If a satisfactory answer to a hard question is not found quickly, system 1 will find a related question that is easier and will answer it. This is substitution.

Question 90

heuristic

Answer 90

A simple procedure that helps find adequate, though often imperfect, answers to difficult questions.

Question 91

a lazy system 2 often…

Answer 91

follows the pasth of least effort and endorses a heuristic anser without much scrutiny whether it is truly appropriate.

Question 92

In the context of attitudes, system 2 is…

Answer 92

more of an apologist for the emotions of system 1, then a critic of those emotions–an endorser rather than an enforcer.

Question 93

anchoring effect

Answer 93

It occurs when people consider a particular value for an unknown quantity before estimating that quantity. The estimates stay close to the number that people considered–hence the image of an anchor.

Question 94

availability heuristic

Answer 94

Like other heuristics of judgment, substitutes one question for another: you wish to estimate the size of a category or the frequencty of an event, but you report na impresion of the ease with which instnces come to mind.

Question 95

JEB Challenge

Answer 95

Can’t strike someone on the basis of sex.

Question 96

strike zone

Answer 96

jurors capable of being on the jury. It is calculated as the number of people on the jury plus the total number of peremptory strikes.

Question 97

jury shuffle

Answer 97

You can requestion jurors to be shuffled once before they are sworn in.

Question 98

Error preservation in voir dire?

Answer 98

Same as during any other part of the trial