Trial lawyers — both defense-side and plaintiff’s-side — are always looking for an edge.
Every aspect of the trial has to be planned in advance, with multiple levels of contingency planning for when testimony, rulings or evidence goes awry. That’s a given, but it’s not enough.
There’s a whole cottage industry of jury consultants built upon trial lawyers’ insecurities, some reputable, some not so much, all of it quite pricey.
Most of it strikes me as pointless. Sure, a mock jury or consultant review can expose weaknesses in your case and reveal the importance of issues that you hardly considered — but so can a discussion with one of your colleagues. So can mere contemplation; if a case is prepared long enough in advance, it will take on new dimensions over time.
The trial consulting out there isn’t all bad. David Ball’s Damages holds a singular place in the canon of trial advocacy.
His latest work, written with Don Keenan — Reptile: The 2009 Manual of the Plaintiff’s Revolution — goes astray.
It’s not a bad book. Far from it. It’s a great book, with a lot of useful ideas for trial lawyers. And it certainly didn’t say anything that would warrant introducing it into one of Keenan’s trials.
The problem is with the "hook" the authors use:
Learn about the reptile brain, and how and why jurors make the decisions they do. This groundbreaking new research from Ball, Keenan, Jim Fitzgerald, and Gary C. Johnson teaches you how to make tort reform have only a negligible impact on juries. Using the jurors’ most primitive instincts of safety and self-preservation, you can show jurors that your case isn’t only about getting justice for your plaintiff, but about the livelihood of each individual juror and their communities.
Count me unimpressed. I’m happy to read about what those folks have to say about persuading juries.
But the "groundbreaking new research?" The "reptile brain?"
It reminds me of another field looking for The Next Big Thing:
A recent Times article described the use of neurological research and cognitive science in the field of literary theory.
“At a time when university literature departments are confronting painful budget cuts, a moribund job market and pointed scrutiny about the purpose and value of an education in the humanities, the cross-pollination of English and psychology is providing a revitalizing lift,” the article said.
Does this research — “neuro lit” is one of its nicknames — energize literature departments, and, more broadly, generate excitement for the humanities? Is it yet another passing fad in liberal arts education? If the answer is both, why does theory matter, even if we sometimes don’t understand what the scholars are saying?
The distinguished panel brought together by the Times’ is unimpressed. "The search for ‘the next big thing’ has seduced, and then bedeviled, literary studies for some time," says one. "New approaches to literature are always welcome, but, in general, they only provide a few jobs for the leaders of the movement and the first generation of acolytes," says another.
So it goes with trial law and neuroscience.
It’s a gimmick.
Last month the ABA Section on Litigation’s monthly magazine (titled, surprisingly, Litigation) published Classical Rhetoric and the Modern Trial Lawyer (subscription required to read it). The article focused on Artistole’s Rhetoric, published nearly two and a half millenia ago.
"Groundbreaking new research" it is not. "Withstood the test of time" is more like it. Here’s the full text of Rhetoric online. A sample:
There are, then, these three means of effecting persuasion. The man who is to be in command of them must, it is clear, be able (1) to reason logically, (2) to understand human character and goodness in their various forms, and (3) to understand the emotions-that is, to name them and describe them, to know their causes and the way in which they are excited.
No systematic treatise upon the rules of delivery has yet been composed; indeed, even the study of language made no progress till late in the day. Besides, delivery is — very properly — not regarded as an elevated subject of inquiry. Still, the whole business of rhetoric being concerned with appearances, we must pay attention to the subject of delivery, unworthy though it is, because we cannot do without it. The right thing in speaking really is that we should be satisfied not to annoy our hearers, without trying to delight them: we ought in fairness to fight our case with no help beyond the bare facts: nothing, therefore, should matter except the proof of those facts. Still, as has been already said, other things affect the result considerably, owing to the defects of our hearers. The arts of language cannot help having a small but real importance, whatever it is we have to expound to others: the way in which a thing is said does affect its intelligibility. Not, however, so much importance as people think. All such arts are fanciful and meant to charm the hearer. Nobody uses fine language when teaching geometry.
Getting an edge is great, but don’t forget the basics.