Deliberations

The Future Of Reputation, Part I

I'm one of the lucky bloggers Dan Solove asked to review his book The Future of Reputation:  Gossip, Rumor, and Privacy on the Internet.  It's great, as I'll explain, so I hope he'll forgive me for starting this way:  I'll remember something Dan said about his book longer than I'll remember any of the quotes in it.  Responding to blogger James Grimmelman's criticism that the book could be more nuanced and resolved in its legal theory, Dan said this:

When I was writing this book, one of the greatest challenges was how to write in a way that appealed both to experts and to non-expert readers. How should I describe legal solutions in a way that law professors and lawyers would appreciate yet that lay people wouldn't find too complicated and detailed? How should I describe the blogosphere in a way that people unfamiliar with blogs and social network websites can understand yet at the same time not make seasoned bloggers groan? And how do I discuss solutions when there isn't any easy fix? . . . Unlike some of my other work, my primary goal for the book was to spark a debate and discussion, not to advance my own theories. I still do suggest ideas and solutions, but my central aim is to get people thinking, talking, and debating. This is a more modest goal compared to some of my other work, but I think it is still an important one, and I hope I have achieved it.

Important?  To me it seems like part of a watershed, a moment in history.  Law professors like him and law practitioners like me, actually wanting to talk to each other.  As I read his tales of what the Internet has done -- from creepy fake dating profiles to worldwide "shaming" campaigns -- I kept remembering that this same Internet is what created this welcome dialogue.

The route list

I never set out to be unaware of legal scholarship.  In my first weeks as a lawyer, I straightened my new desk, learned the buttons on the phone, and signed up for the "route list" for legal materials our law library subscribed to.  Fresh out of law review and an editing stint for a respected professor, I figured any good lawyer needed to read law reviews, so I checked the box for every law review on the list.  In the months that followed, my law review volumes came -- and sat unread.

I did try; I began lots of articles.  Over and over, I set them aside because they had nothing to do with the work I was doing, or the work anybody else was doing.  Critical legal studies peaked and faded, entirely off the radar screen for my colleagues and me.  Whatever silliness I faced as a young woman lawyer in the early '80s -- and sometimes it was considerable -- seemed unrelated to feminist legal theory.  Law professors and law practitioners had little to say to each other in those days.

It's all different now.  The change isn't entirely caused by the Internet; the focus of legal scholarship itself seems to have shifted toward the practical.  (So that, for example, the Empirical Legal Studies Blog could present this week "a particularly exciting example of how empirical legal scholarship can illuminate important matters about how the judicial system actually operates.") 

"H/T Volokh."

But at least as important, as far as I can tell, is that blogging has changed the way lawyers and professors talk to each other.  Practitioners hear from professors daily, not when the quarterly review comes out.  Professors hear from practitioners, instead of just each other.  And whenever either side posts, the other side chimes in with comments.  It's a discussion.

And it's changing the way we see each other.  Back in July, Scott Greenfield was explaining the differences between professor and practitioner bloggers ("They post about academic studies while we post about how young lawyers should never go to court wearing their underpants on the outside, no matter how cool they think it makes them look"). This week he could end a terrific post on the other side of the mortgage crisis with an airy, "H/T Volokh."  Here at Deliberations, I have found myself in fascinated (at least on my end) conversation with Prof. Suja Thomas on whether dispositive motions really might be unconstitutional, and Prof. Laura Dooley on the pros and cons of a national jury pool. 

The Future of Reputation

Into this talkative landscape comes Dan Solove, with The Future of Reputation and his vision of prompting discussion and debate.  The book is born of the discussion, about it, and a cause of it, all at the same time. 

More to follow.

Grading My Own Quiz: Correction

Awhile back, looking for an easy post on a busy day, I cited the NPR Jury Quiz.  I should have noted that the quiz is from 2005.  The quiz is still fun, and some of the information it cites -- like the last state to allow women to serve on juries -- will always be accurate.  But other statistics cited there, including how many people are summoned to jury duty each year and how many appear, are outdated.  Judge Gregory Mize, whose work on quiet jurors has been cited here and who is a Judicial Fellow of the National Center for State Courts, kindly wrote:

I continue to enjoy your web jury news. With respect to your latest issue, you use NPR data that is stale. I suggest you consult the recent survey data from the National Center for State Courts' State of the States Survey. Therein you will see that over 31 million Americans are summoned each year. A much higher number report for service, and 1.5 million are actually empanelled on a case.

It's true:  the monumental NCSC State of the States Survey, published this May, should be the resource of first resort for almost any jury statistic, including that one.  Judge Mize wrote to correct me right away, and I was slow in getting this correction up; apologies and thanks to him.

(Image by Amy at http://www.flickr.com/photos/psychobabble/94146830/; license details there.)

A Trial Lawyer's Guide To Social Networking Sites, Part IV

It's done!  No, that's not true; it will never be done.  But here is the last installment of Deliberations' guide to the world of social networking, for your use in talking to potential jurors.  The entire guide is now a separate page on this site, filed under "Voir Dire Resources" in the side bar. 

It's a certainty that I've missed categories here, and and that new ones will pop up from the second I hit "save."  Please let me know if you see things that need to be corrected, updated, or augmented here, and I'll try to keep the page as current as I can.

Here's the last of the list:

Contests

The Internet has always teemed with contest sites, but often now the contest planners, contestants, audience, and judges are all site users.  Examples:

• Bix, "Create.  Enter.  Judge."  Typical contests are for cutest dog, best president of all time, and karaoke, karaoke, karaoke.
• Gather, listed above as a basic social network, has regular writing competitions.  October 2007 brought the announcement of the five finalists in the First Chapters Romance Writing Competition.

Comments

You can have a significant Internet presence without ever having a blog, social network page, or photostream of your own.  On thousands of sites, from large mainstream newspapers to major political blogs to individual photos on Flickr, readers can post comments, and many do.  When jurors write on line to defend their verdicts, they often do it in the comments to a news story about the trial; on this blog we've discussed examples here, here, and here.  To get a sense of how commenters get into conversations and develop recognizable personalities in comment threads, go to any major blog.  The WSJ Law Blog  and Firedoglake are two examples of blogs with heavy comment traffic and repeat commenters who get to know each other.

Forums

A forum is a discussion board, a little like comments without the underlying news story.  A user starts a discussion, usually by asking a question, and others respond.  Some forums are user-generated issue forums, offering a place for people to talk about particular challenges.  It would be hard to think of an issue there's no forum for:  pregnancy, parenting, cancer, weight loss, pick a problem and search it with the word "forum" and you'll find one. 

Other forums are associated with a particular business or author, most likely one who promotes a long-term approach that followers might need help with.  Thus Weight Watchers members support each other in on-line forums, and followers of David Allen's Getting Things Done books ask each other questions in forums on his site.   

As with comments, forums draw repeat participants whose personalities become defined.  At any given time, a given forum might have a few wise sages revered by all, some enthusiastic idea-offerers who pipe up often, a handful of new arrivals full of questions, and a rabblerouser who likes to challenge everything.

Groups

Most social networking sites allow users to gather into groups, but there are also "group" sites where the group is the main event.  Group sites offer a page where group members can see a shared calendar, posted files, and links, and they also offer a single group E-mail address that sends mail to all group members.  Groups can be as small as an extended family sharing baby pictures, or as large as FlyLady's group, whose 440,000 members (as of October 2007) get lots of daily reminder E-mails to help them stay organized and not overwhelmed.  (FlyLady's associated web site is here.  You'll either love her or want to flee.)  Examples of group hosting sites:

• Yahoo! Groups
• Google Groups
• WebRing

A variation on a group site is a wiki, where users collaborate to build web pages.   Big public wikis like Wikipedia are well known, but any work group, family reunion committee, or school club can have a wiki hosted at sites like

• pbwiki, "simple and secure collaboration"
• Wikispaces, "wikis for everyone"
• editme, "Edit your web"

Getting personal

The further you go down the social networking road, the more you find yourself in places where users might not want to be recognized.  Dating sites are the biggest example.  Consumers spent $500 million on Internet dating in 2005, about a quarter of the $2 billion spent on all Internet content (as opposed to, for example, on-line catalog sales) that year.  (Figures are from the Online Publishers Association.)  The Pew Internet & American Life Project reported in 2006 that one in ten Internet users had visited an on-line dating site, 43% of those visitors had dated someone they met there, and 31% of American adults know someone who has visited a dating site.  With numbers like that, it's likely that someone in the jury box knows a little or a lot about sites like:

• Match.com, "It's okay to look."
• eHarmony.com, "matches you based on compatibility in the most important areas of life"
• Chemistry, whose ads target those who were "rejected by eHarmony"

On the other hand, the technology behind dating sites is also used for things you could tell your grandmother about -- like Essembly, "a fiercely non-partisan social network that allows politically interested individuals to connect with one another."

Likewise, there are many ways that jurors might use the Internet that they'd want to keep private, even though they're fully legitimate.  People store their tax information on Turbotax, and look for jobs at Monster.com.  They can track their progress toward personal goals at Joe's Goals, and check their mental health on the various tests at Martin Seligman's Authentic Happiness site.  They post lists of things they'd love to own, not only at scores of store sites like Amazon, but also at free-standing "wish list" sites" like TheThingsIWant.com and DreamofThis.com.  They do all this on the promise that their personal information won't be revealed.  Rule of thumb:  if you couldn't see a juror's Internet profile without that juror's own password, don't ask about it in voir dire.

That way monsters lie

And then there's beyond.  The American Gaming Association says almost 23 million people gambled on the Internet in 2005.  Oddly, I'm not finding statistics that look trustworthy to describe how much pornography is out there, but anybody with a spam filter knows it's a lot.  There are hate sites for every group you could possibly hate.  Lawyers who work in these areas have to learn this territory.  I have not had to, and hope not to.

Combine all ingredients and stir well

Got all that?  Great.  Now, to finish the list, think of as many ways to combine all these applications as you possibly can.  There's an application that lets you see your Facebook friends' Second Life avatars on their Facebook profiles, and "teleport" from there to wherever they are in Second Life.  Facebook applications like HobNob! let you request introductions to other people in the same way LinkedIn does.  "Profile aggregators" like MyLifeBrand are emerging to let users manage all their different social networks.  Mashable is the news source for all this; subscribe to their blog and watch the world turn a lot faster than you thought it did.

Just plain web sites

Finally, don't forget web sites.  Your juror might have a plain ordinary old-fashioned web site.  You'd hate to forget to ask about that.

(Image by Leigh Blackall at http://www.flickr.com/photos/leighblackall/64955397/; license details there.)

Jury Notes From Elsewhere, October 29

Jury talk seems to be everywhere lately.

1.  When you can't handle the truth.  "[T]here is enormous freedom in trying the impossible case," says Scott Greenfield of Simple Justice in "Loser Truth," a long post about what to do when the client insists on a story that no one is likely to believe.  If that weren't useful enough, Gideon at a public defender ends his comments on Scott's post with what may be the single best piece of jury advice you'll ever get:

What is it about the client’s story that would convince you that he was telling the truth? That’s how you convince the jury.

2.  No rehearing in George Ryan's appeal.  In August a Seventh Circuit panel upheld former Illinois governor George Ryan's conviction despite some of the messiest jury management you'll ever see, and last week the full court rejected Ryan's request for an en banc hearing.  The dissent, jointly authored by Judges Michael Kanne (who dissented from the panel opinion as well), Richard Posner, and Ann Claire Williams, is an extended essay on jury management.  Robert Loblaw made the case his Decision of the Day; Point of Law Forum highlighted the dissent's concerns about long jury trials; and How Appealing collected other discussion here.

3.  Nervous jurors.  Colin Miller's EvidenceProf Blog is almost a month old, and always welcome.  Last week Miller differed with the trial judge in a Wyoming case where the jury sent this anxious note:

Dear Judge Grant:

     During our deliberation some concerns have arose about the safety and any retaliation of either family, towards any of us or our families.  Some of us have been approached by some of the family members.  Please advise us of our course of action.  Thank you.

Respectfully yours,

The Jury.

4.  What's in a name?  David Swanner of South Carolina Trial Law Blog argues that jurors would respond better to many lawsuits against doctors if lawyers described them better.  It's often "medical mismanagement," he argues, not "medical malpractice."

5.  Baby steps in Japan.  Robert Precht at Foley Square continues his stories of Japan as it prepares for jury trials.  He recently told an audience that defense lawyers should argue their own interpretation of the evidence, rather than simply relying on the burden of proof.  How can I do that, one lawyer asked, "without knowing what the evidence will be at trial?"

6.  From voir dire to verdict.  Stephen Gustitis at The Defense Perspective can somehow blog during trial, and his generosity gives us a rare view of trial strategy and how it works out.  At least twice now, he's told us a little about how a voir dire went, and then a few days later we've been able to hear what that jury decided.  This time, Gustitis reports he got a mistrial from his "twelve special jurors." 

7.  Mark Bennett teaches cross.  He has a terrific series going at Defending People about preparing to cross-examine a doctor.  The first two installments are here and here. 

8.  The power of gossip.  Howard Zimmerle of Quad Cities Injury Lawyers points to new science suggesting that we're influenced by gossip even when it contradicts our own observations.  Howard considers what this might mean for voir dire.

9.  Juror Locks Self In Bathroom.  "So, it's come to this, has it?" asks jury consultant Edward Schwartz at Jury Box Blog. 

10.  And finally, Ann Handley at Marketing Profs Daily Fix Blog is right that if you want to understand how the world is changing, this short video is a must-see.

(Photo by Ho John Lee athttp://www.flickr.com/photos/hjl/101443399/; license details there.)

Take The NPR Jury Quiz

"Some 10 million U.S. citizens are summoned for jury duty each year. How many report for jury service?

"A: 900,000
"B: 4 million
"C: 7.5 million"

On a day when there isn't time for a full post, it's great that this and other jury questions  -- and answers -- are on line at NPR. 

_____________

Update and correction:  the quiz is fun, but it's from 2005, and some of its answers -- including the answer to the question above -- are outdated.  A far better source for current jury statistics is the National Center for State Courts' State of the States Survey, published this May.  Thanks to Judge Gregory Mize for the reminder. 

(Image by Amy at http://www.flickr.com/photos/psychobabble/94146830/; license details there.)

A Trial Lawyer's Guide To Social Networking Sites, Part III

The last installment of Deliberations' social networking guide ended with sharing sites. Let's pick up there.

Bookmarking sites

Bookmarking sites are sharing sites too, but there are so many of them and they're so powerful that they're worth talking about separately. Bookmarking users share things they've found on line -- news stories, blog posts, web sites. Other users get their news from the resulting flood of stories, and they in turn flag stories they like. As in other sharing sites, each user has an individual page where you can look at stories that user has shared.

These sites are big. On Digg, one of the leading bookmarking sites, the top story of the last 24 hours has been "dugg" almost 3,000 times as I write this. When somebody put one of my posts on Reddit, my page hits tripled, and stayed up there for three days.

Examples of the dozens of sites like this are:

• del.icio.us
• Digg
• Reddit
• StumbleUpon

Many feed readers have a "shared stories" feature that works like a bookmarking site. Deliberations' "In The News" feature consists of the stories I tag for sharing in Google Reader.

Games

Wikipedia has a separate entry for "massively multiplayer online role-playing game," or MMORPG. It's a game in which "a large number of players interact with one another in a virtual world," each living the life of a fictional character. The Wikipedia entry claims there were more than 15 million memberships in these games in 2006. Your character usually has a defined and changing personality, joins groups and makes alliances with others, and keeps interacting even when you're not playing the game. Some of the biggest MMORPGs are:

• World of Warcraft -- you're fighting your way through the fantasy world of Azeroth
• Omerta -- you're a gangster
• EVE Online -- you're in space
• World of Pirates -- you're a pirate, naturally

It's not all swash and buckle. You can post a profile with a picture in your online bridge club, spend the evening (or all night) getting to know the rest of your foursome, and head off to the chat room when you're the dummy. There are online multi-player games of all kinds, from chess to poker, where people are getting to know each other or some virtual projection of each other. You can also bond with those who would rather watch than play; 19.4 million people were playing fantasy sports games in August 2007, the Fantasy Sports Trade Association reported.

Second Life

Second Life is -- how to explain Second Life? It's an online world, "a 3-D virtual world entirely created by its Residents," the Second Life people say. As I write this on a Sunday evening in October 2007, there are more than 37,000 people directing their "avatars" through the events of their days and nights in Second Life.  In the last 60 days, almost 1.3 million people have logged in, and there are over 10 million "Residents" of Second Life's world.

Isn't that just a MMORPG, you'll ask, now that you know what a MMORPG is? No, say the Second Life folks, for two reasons. First is ownership. You own what you create in Second Life, and as the Illinois Business Law Journal reported in September, this means there is an active economy not only in virtual currency but also in actual currency for virtual property. (Read that again slowly. People are paying each other actual money for the right to own stuff that exists only on an Internet web site.) Second is flexibility. Second Life isn't a gangster world or a pirate world, it's a world:

If you want to hang out with your friends in a garden or nightclub, you can. If you want to go shopping or fight dragons, you can. If you want to start a business, create a game or build a skyscraper you can.

It's hard to convey how huge this thing is, and how closely it is interweaving itself with the thing we (so far still) call "real" life. Real professors teach seminars in Second Life classrooms, and students' avatars show up to listen. Yesterday, Timothy Zick guest-blogged at Concurring Opinions about a "Free Burma" event at Second Life, "which featured a 'human chain' event in which 500 people from 20 countries joined, as well as vigils and meditations in support of this cause." The event left Zick (and at least one thoughtful participant he quotes) wondering what it was about Second Life that made this event powerful, and whether it will inspire activism offline as well.

Part IV, to come, should finish the series.

(Image by Leigh Blackall at http://www.flickr.com/photos/leighblackall/64955397/; license details there.)

Jury Notes From Elsewhere, October 12

Recent writing on juries at other sites has been great. It includes:

1. A great technique for opening statement. "When I open, I like to start the story in the middle," says Eric Turkewitz of New York Personal Injury Law Blog. It's a compelling way to begin a story, and Eric explains it more clearly than I ever have.

2. Fearless thinking on secrets. Picking up on a post here about the secrets jurors carry and are unlikely to share, both Stephen Gustitis and Mark Bennett suggest: share yours first. "[A] person responds to what is given to them," says Stephen at The Defense Perspective: "Sad for sad. Fear for fear. Slow for slow. Secret for secret." At Defending People, Mark relates the discussion to a wonderful series he's doing on the Tao Te Ching, and says, "Sometimes you have to show the jurors yours -- reveal your own secrets -- to have even a chance that they'll show you theirs."

This is advanced stuff. If you have the intuition and awareness these guys do, your authentically open voir dire might elicit stories jurors have never told before. (The voir dire in the James Seale trial is a striking example of jurors trusting their questioner enough to tell some of their most painful memories.) If you're clumsy or faking, it won't work.

3. The trouble with juries. Scott Greenfield was already asking tough questions about juries (he always starts with "I really like Anne Reed's blog, but . . . ") when Ken Lammers at CrimLaw described a trial where the jury took an inexplicable turn. Scott was right there, blunt as usual ("That great old saw about the jury system, 'it may not be perfect, but it's the best there is' is a load of crap"), but making valid points. If anybody tries to tell you she has a foolproof approach to jury trials, reread these posts.

4. "Lie acceptability." One of Scott's questions was "When we catch a witness [lying], we exploit it as much as the judge will allow. Will [jurors] think it's such a big deal?" It depends, says Emma Barrett at Deception Blog, reporting on a new study. "Different types of lie may be more or less acceptable, depending on the motivaton for telling them and the context in which they are told." She gives details.

5. More on law professors on juries. Prof. Michael Dorf at Dorf on Law is concerned about the jury system too, after he reported for jury duty and was "peremptorily challenged again." He thinks the lawyers must have assumed he'd favor prosecution, and he's not so sure he would have. Either way, he says, "By providing lawyers with just enough information to make wild guesses about a juror's sympathies, our system of voir dire and peremptory challenges shows itself to be worse than useless."

6. Farther down the collision course. A post here awhile back wondered if two Supreme Court cases were heading for conflict: Witherspoon v. Illinois, which says a juror must be removed for cause if his religious views prevent him from applying the law, and Batson v. Kentucky, which holds that jurors may not be removed because of their race -- and, the Court may eventually hold, their religion. Karl Keys at Capital Defense Weekly wrote on this theme this week, citing a poll finding that 47% of Catholics believe they would be ineligible to hear capital cases, and noting a pending certiorari petition "that asks why should Witherspoon continue in light of the evidence that it hits members of minority communities and the religious the hardest."

7. Finding lawbreakers on MySpace in a few short clicks. The Milwaukee Journal/Sentinel's Proof and Hearsay blog has an amazingly simple primer.

8. The vanishing jury trial. Beck and Herrmann at Drug and Device Law Blog are honest about it, when -- as they note -- a lot of trial lawyers aren't. "It matters because counsel should change their strategies when they're defending cases that they know will settle," they say, and explain how.

9. Make your message stick. Are you reading the marketing blogs? They're all about persuasion, so you should be. Marketing Profs Daily Fix Blog has a podcast interview with Chip and Dan Heath, authors of the book Made To Stick, a wonderful resource on how to get your message across clearly and memorably. I keep coming back to Made To Stick.

(Photo by Ho John Lee athttp://www.flickr.com/photos/hjl/101443399/; license details there.)

My Blog Speaks Italian

One of the strangest things about writing almost every day is that the work slowly grows into something almost unfamiliar. You look back over it and think, "Did I really say all that?" And then one day the blog stands up and does something you can't -- like speak Italian.

I get page hits every once in awhile from Google Translate, a Google service that somehow automatically translates text into other languages. I've seen automated translators before and they were awful. (A friend once tried to use one to prepare a business letter in French, and it rendered the typical American closing "yours very truly" into something roughly like "I will love you forever.") But Google Translate is pretty good, as best I can tell with my sort-of-okay French skills -- not perfect at all, and sometimes just wrong, but generally readable and in places even fluid.

I could stare all day at this site in French; it just looks so sophistiqué. It looks worldly in Italian, cutting-edge in Spanish, and in Russian it looks like an ancient text.

In Japanese, this site might actually be helpful to somebody. They're introducing juries in criminal cases there. I've gotten several hits recently for this site in Japanese, especially for the juror questionnaires collection. Japanese reader(s), if you're out there, I do hope you found something helpful here, and feel free to contact me if you have questions I might be able to answer.

__________________

Note: As coincidence would have it, Kevin O'Keefe at Real Lawyers Have Blogs discusses blogs in translation today, and warns of the danger of being misunderstood. It's perhaps a good time to repeat that nothing in this blog is intended as legal advice -- even in English, much less other languages.

(Photo by Anthony M. at http://www.flickr.com/photos/antmoose/63891248/; license details there.)

Simply The Best, My Ten

A jury blogger ought to be able to follow instructions, right?  So although I'm still basking in Blawg Review's praise, I'll name ten really good law blogs, and pass this meme on to them to do the same if they choose.

Simple Justice, Defending People, Corrections Sentencing, and Drug and Device Law Blog, you'll be relieved to hear you're disqualified, since you just got a different meme award here on Monday. From the rest of the "blawgosphere," these ten come first to mind:

• SCOTUSblog
• New York Personal Injury Law Blog
• Austin Criminal Defense Lawyer
• Blawgletter
• Capital Defense Weekly
• a public defender
• TalkLeft
• Empirical Legal Studies Blog
• Point of Law Forum
• Psychology and Crime News

(Photo by Nichole Armageddon at http://www.flickr.com/photos/nmusser/150096657/; license details there.) 

Deliberations' Thinking Blogger Award Winners

Several weeks after Emma Barrett of Deception Blog kindly named me one of her five Thinking Bloggers, I'm finally ready with my own list.

Ironically, designer Ilker Yoldas, who started this "tag" award -- called a meme -- at The Thinking Blog, didn't like memes. "I have decided not to join any memes in the future," he said in the first "Thinking Blogger" post in February, "but how can I leave the world of blogging memes without starting one?" It's been a good one, rolling around the Internet for the last six months unearthing some very good writing in dozens of fields.

Making the list was difficult at first, like trying to name your five best friends; you hate to leave anybody out. But it isn't "five best," it's "five who," I finally realized, and it's just for fun. So here are five of the many bloggers who make me think, in a list slanted toward those I don't normally get to cite:

1. Tim's El Salvador Blog. My friend Tim was the first blogger I actually knew, and it took awhile to realize not all blogs are as good as his. Tim is an ordinary Midwestern guy who went to El Salvador with his church in 2001, and fell in love with the country and its imperiled culture. He started his blog in 2004 "as a way to make information about current news and events in El Salvador available to other English speakers." That means that in addition to his demanding and unrelated day job, he follows the press on El Salvador every day, in both Spanish and English, and passes it on with steady clarity.

Tim covers everything: politics, the environment, pop culture. Too often he has to report violence, like the murder of a journalist this week, and of a little boy Tim knew this summer. All of it is intelligent, unflinching, and quietly compelling.

2. woolgathering. If I could read only one blog post a day, it would be Elizabeth Perry's daily drawing. Each one is an ordinary moment, calmly recorded, and they add up to the rich life we all have, if we could only see it as she does. Last week she posted her 1000th drawing. She's been tagged before, and she doesn't have to pass this on if she doesn't want to, but I couldn't leave her off this list.

3. Corrections Sentencing. Michael Connelly has been a key player in the sentencing and corrections community in Oklahoma, Maryland, and here in Wisconsin. He started his blog last year, noting "the lack of constant, consistent forums for practitioners, policymakers, and the public to seriously review and discuss what's happening" in corrections and sentencing. The depth of what's discussed here, and the depth of frustration felt by many in this community, are striking.

4. Drug And Device Law Blog. Dechert LLP's James Beck and Jones Day's Mark Herrmann, somehow managing to write about pharmaceutical and medical device product liability defense in a way that keeps specialists interested and newcomers still reading. They're also pretty funny, especially on the rare occasions when they go off-topic.

5. Simple Justice and Defending People. I link to both Scott Greenfield and Mark Bennett all the time, but I haven't had a chance before to talk about the dialogue that goes on between them, and attracts insightful comments from all over. There's always some kind of backyard party going on in their blog neighborhood. You guys can decide how to divide up this award.

So, lucky winners, here are the rules as they have been passed down to me:

1. If, and only if, you get tagged, write a post with links to 5 blogs that make you think.

2. Link to the Thinking Blog's original post so that people can easily find the exact origin of the meme.

3. Optional: Proudly display the "Thinking Blogger Award" with a link to the post that you wrote (there is an alternative silver version if gold doesn't fit your blog).

What I (As It Turns Out) Read

I use Google Reader to gather my news feeds and searches, but I'd never clicked the page called "Trends" until this morning. There, lined up in neat lists, were the names of the feeds whose stories I most often click through to read, mark with a star, or share in Deliberations' "In The News" section.

On another day or for a different blogger, this might have been a creepy Big Brother moment. But my feeds are pretty tame (The Onion marks the outer edge), and the "winning" feeds surprised me. Whatever it is I think I'm reading, the feeds I use most are two sites that distribute press releases on new scientific research, Science Daily and Eureka Alert.

It wasn't close. Hands down, my most frequently read, starred, and shared stories are from Science Daily and Eureka Alert. That's partly because they're the most frequently received; I get on average 36.8 stories a day from Science Daily, reports my Trends page. But it's also because the stories that deal with social science are often directly relevant to jurors and juries. Recent examples:

• "The Science Of Collective Decision-making," a story on "the first empirical investigation" of something called "the doctrinal paradox." This occurs, the press release explains, "when judges, say a hiring committee or a jury, must evaluate several factors about a candidate, (e.g. a possible employee or a defendant in a trial) and come to a majority decision. When different opinions arise, the way they conduct the majority vote can be more important than the opinions themselves." That is, if a crime has several elements, the outcome may turn on whether the group votes on each one separately or holds one vote on whether all the elements are met.
• "Why Few People Are Devoid Of Racial Bias," on a study suggesting that the unbiased people (at least the few the researchers were able to find) were slower to form new negative associations of any kind than biased people. The press release suggests that if we're to fight prejudice, we can't just ask people to be fair; we have to show them why they should leave their bias behind. (The press release actually phrases it as "such change may require reconditioning of the negative associations that people hold," but that was my take.)

You can limit your Science Daily stories to a single category, like "Mind & Brain," but I get the entire feed, and it's great. In a single day I can see stories like "Two Giant Steps In Advancement Of Quantum Computing Achieved," "Early Humans Walked, But Couldn't Run," and "Whale And Dolphin Sonar Evolution Studied." It only takes a second to scroll through these on Google Reader, a small price to momentarily expand a lawyer's world.

(Photo by Emily at http://www.flickr.com/photos/19908525@N00/367598336/; license details there.)

Blawg Review #127

Welcome to Deliberations, a blog about juries and proud host of the 127th edition of Blawg Review -- the "17 Best Tips For Voir Dire" edition.

We talk a lot about jury selection here, and one message comes up over and over. To get good at voir dire, you need to set aside your assumptions, and instead see the real men and women in the jury box. It isn't easy; your brain on autopilot is a pushy creature. But if you're trying to really see, the world is your classroom. Everything from your morning paper to your office politics is a chance to practice.

So is, it turns out, a trip through the best law blog posts of the past week. So here is Deliberations's list of 17 Best Tips For Voir Dire, as inspired and illustrated by some terrific law bloggers.

1. Assume nothing

If you assume you know what a potential juror -- or anyone else -- is about, you'll be wrong. Take the ungainly mobile phone salesman from South Wales auditioning for the show "Britain's Got Talent." In the video attached to Susan Cartier Liebel's "Lacking Confidence As a Solo? Sing Opera," he's so nervous he looks like he's going to cry -- but at the end, he's the only one not crying. You may have seen it already, but watch it again, and read the great personal story Susan tells in her post on it at Build A Solo Practice, LLC.

2. Look for leaders . . .

In voir dire you're looking not just at how individual jurors will respond to your case, but also how they'll work together. If one juror will steer the discussion, you want to know that.

Start with the talkative guy in the back row, since he's so easy to spot -- the guy who gets everyone else talking too. This week that was Scott Greenfield at Simple Justice. Scott was on the front end of the taser-at-the-Kerry rally story with "Elimination of Annoyances by Force" and "Jerk in the First Degree." Then Scott turned journalist, reporting the story of the New York trial where a murder charge was dismissed by a judge but then "mistakenly submitted to the jury," as the New York Court of Appeals put it. Orin Kerr's "A Remarkable Story" at The Volokh Conspiracy and Carolyn Elefant's "Conviction for a Murder Charge That Was Dismissed" at Inside Opinions picked up Scott's post and spread it far and wide. Meanwhile Scott himself was getting quoted in the National Law Journal for something else. If that guy is on your jury, you'd better convince him.

Look too for possible "social directors" -- jurors who might not dominate the discussion, but who will shape how the group works together. These include the ones who will make friends and organize the reunion party next year. Diana L. Skaggs at Divorce Law Journal would be one of those; she and Idealawg's Stephanie West Allen are "Calling Lawyers Who Blog" to "a gathering of lawyers who blog at next year's Idea Festival." Robert Ambrogi at Robert Ambrogi's LawSites brings bloggers together too (which qualifies him to speak sternly this week "On Blogging, Copyright and Transparency"). Gideon provides the social center for public defenders at Public Defender Stuff, listing among other things new posts from public defender blogs every day. And of course there's David Lat's virtual water cooler, Above The Law. A jury with any of those folks on it would have a color-coded snack duty roster hanging on the jury-room wall by the end of the first day.

3. . . . and dissenters

At the other end of the group dynamics scale, look for the juror who might not want to go along with the group. And whether or not you've recognized that juror, be ready for deadlock at the trial's end, with some idea of how you'll ask the judge to respond. The judge in Phil Spector's California murder appears to have botched it, as Jeralyn Merritt at TalkLeft explains in posts Wednesday and Friday. "Here's how to blow a five month trial out of a judge's desire to avoid a deadlocked jury," she says: "Let the jury deliberate a week and then change the jury instructions to add new ways the jury can find the defendant guilty."

4. Watch for points of view

Almost any trial can be seen from a political perspective. Walter Olson at Overlawyered doesn't hide his: he supports tort reform. He'd have no patience for the recent voir dire in which a plaintiff's lawyer suing British Petroleum projected a huge image of Enron's logo behind himself as he questioned jurors. "Maybe BP should have used its side of juror selection to flash large images of scandal-plagued or widely disliked Texas plaintiff's attorneys," Olson muses. It's great reading, but I'm guessing Walter Olson will never get to sit on a tort jury.

5. Look for skills

We often ask jurors to work at a high level, and it's worth figuring out in voir dire which jurors bring the skills the group will need. Many jurors are math-challenged, but more and more trials require a facility in math, like the ones Leon Gettler warns us of in "Securities Lawsuits On The Rise" at Sox First. Some jurors struggle with language, either because of literacy problems or because English isn't their first language -- and then there are language gurus like Ken Adams at AdamsDrafting, who can do multiple posts on what the word "material" means. Then there's the basic challenge of absorbing hours of new, and often not sequential, information. We all struggled with this in law school; anonymous new professor "Alex Aebutian," guest-blogging at Civil Procedure Prof Blog, helps his students by telling them not to try to outline.

6. Notice how they process information

In many trials, one side (typically the plaintiff or the prosecutor) seeks jurors who'll quickly decide how they want this story to end, while the other side seeks jurors who'll parse the instructions and the patent claims, making sure that every legal T is crossed. I call these "story jurors" and "process jurors," and you can sometimes recognize them in the way they express themselves.

Lee Barrett of E-Everything for Bankruptcy Lawyers... might be a process juror. Here's a pretty good hint: he calls the new Maryland E-discovery protocol "Cooler Than The Matrix." (It's a very thorough and helpful post, whether you're in or out of Maryland.) Likewise Lawrence Solum's meticulous summary of the various standards of appellate review, at Legal Theory Blog, sounds like the work of a process juror.

On the story juror side, Brett Trout at Blawg IT explores plagiarism, something story jurors have trouble forgiving even when it's clearly legal. Brett's posts deal with lawyers' and judges' plagiarism: Iowa Lawyer Sanctioned for Plagiarism and More on Plagiarism in Legal Briefs.

7. Know what generational differences mean, and don't

Even lawyers who've conquered most of their other assumptions still think they know how older people, or young people, will react in the jury box. At idealawg, Stephanie West Allen discusses Generation Y from the perspective of both law firm management and intellectual property law, and suggests we're better off asking ourselves questions than thinking we know all the answers.

8. Pay attention to the quiet ones

Then there are the jurors who just don't talk much. Two words of advice from Mark Bennett of Defending People: poll them, when the verdict comes in. In a recent trial he describes in "Why We Poll the Jury," it made all the difference.

9. Remember they have lives

For reasons I can't explain, most lawyers believe that when they're talking to potential jurors, the potential jurors are paying attention. It's not always true. Jurors are trying to listen to you, and sometimes succeeding. But nearly every juror will be distracted often during the day by some aspect of the busy life that didn't stop when she was called for jury duty.

One may be worried about an elderly parent in a nursing home -- perhaps with good reason, notes Frank Pasquale of Concurring Opinions. Another may be lost in the world of the online game he spends hours playing each day. (Online gaming is so strong that it supports real-money transactions with unclear legal ramifications, report students at the University of Illinois College of Law in their innovative Illinois Business Law Journal.)

One juror may just need caffeine; Jamie Spencer at Austin Criminal Defense Lawyer noticed a report on caffeine's addictive qualities, and considered how differently the law treats different drugs. Another juror may be a nursing mother, wondering if she can make the logistics work. New blogger Daniel Schwartz considers workplace nursing policies at Connecticut Employment Law Blog.

And yet another juror may be distracted for the very best of reasons. Karl Keys, steady anchor of the death penalty defense community at Capital Defense Weekly, has a gorgeous new baby boy.

10. Not all jurors are like you

It's hard to get outside our own worlds. If you have a golden retriever and kids who play soccer, you're likely to imagine your jurors have golden retrievers and kids who play soccer. Stop, think, expand.

Remember the Whitewater alternate juror who showed up every day in a Star Trek uniform until the judge kicked her off for talking to the press? If you're not into science fiction, you'd be amazed at how many people are. Volokh's Ilya Somin has a detailed and entertaining post on whether the Federation that governed much of Star Trek's universe was in fact very federal, and got a long string of commenters who clearly followed the discussion line for line. (One called it "the single-most geeky legal thread ever.") Meanwhile Quizlaw tells the story of a man who, when the police arrested him, claimed he was Darth Vader. And when Holden Oliver at What About Clients? writes "It's One Web Day--and big day for all you druids in Pittsburgh," don't think he's fully kidding. Druids get jury summonses like anybody else.

11. Some just want to get back to work

By their poorly concealed Blackberries you shall know them, the people who just want to get out of the courtroom and back to work. They're thinking about the complex projects they left behind, maybe a detailed post on the recording industry's efforts to limit traditional first sale rights (Frank Pasquale, writing this time at Madisonian.net), or the first significant effort to enforce the open-source GPL license (Tim Lee at TechDirt).

Don't blame these hard workers; envy them. If I were in the middle of a mammoth five-part overview of the Patent Reform Act of 2007 like the one that starts here at the PHOSITA blog, even I might skip jury duty.

12. Learn the publicity, whether it's national . . .

If your case has been in the news, you need to know exactly what jurors might have seen. There's nothing like blogs to learn the different ways someone might view your case -- and, since jurors often read blogs, the different voices that may still be ringing in their heads.

This week the Jena Six demonstrations were among the leading stories, and leading bloggers like Instapundit, Volokh's Orin Kerr, and Ann Althouse were frustrated at how hard it was to get the facts on what really happened in Jena. Libertarian Patterico at Patterico's Pontifications and liberal Jeralyn Merritt at TalkLeft both responded with long, multi-sourced posts, Patterico here and TalkLeft here. Meanwhile in a series of posts at The Volokh Consipiracy, guest bloggers K.C. Johnson and Stuart Taylor traced the roots of the Mike Nifong/Duke Lacrosse scandal. "It's like watching a train wreck in slow motion," wrote a contributor to this review.

13. . . . or local

Not all news is national. You need to know what's in the local paper as well. Milwaukee's Journal/Sentinel has its own law blog, a good one called Proof and Hearsay. If you had a trial here and read that blog, you'd know that the jury duty scam that has wandered the country for months has recently turned up here. In Boston, the story is the recent Bill Bellichick "Spygate" football scandal, which led Lisa Fairfax at The Conglomerate to consider individual versus collective liability.

14. They want the big picture

Studies show that jurors are thinking and talking about whether the parties are insured and what their legal fees are, even though those things aren't part of the evidence. Contingent-fee plaintiffs should think more about legal fees too, argue Drug and Device Law's Jim Beck and Mark Herrmann, since "typical engagement letters between counsel and product liability plaintiffs do not adequately disclose that a plaintiff may, after a loss at trial, be personally liable for tens of thousands of dollars in court-awarded costs."

15. If you're lucky, you'll have a juror artist

Here at Deliberations, we love juror artists -- the doodlers, the sketchers, the photographers, the dreamers. After all, this is the home of the American Gallery of Juror Art, the world's only (I think) showcase for art done by actual jurors while they were actually on jury duty.

David Giacalone might be a juror artist. His lovely blog is f/k/a, where he's been mixing law and haiku -- "breathless punditry & one-breath poetry" -- since 2003. This week, picking up on a post here, he looked at the coming re-introduction of the jury system to Japanese criminal courts. David wonders whether traditional Japanese attitudes toward authority and harmony will foil the goals of the jury reform movement, and the post weaves his thoughts, his sources, and the poems of Master Japanese haiku poet Kobayashi Issa.

16. Make a good impression

Jurors don't wake up in the morning full of admiration for lawyers. Barry Barnett of Blawgletter came back from a seminar this week and wrote: "Twenty-first century jurors start out seeing you not as a truth-telling seeker of justice but as a money-making manipulator of the justice system. You must convince them otherwise."

How do you do it? By showing some integrity, for one thing. "Teaching Ethics," at Professor Marc Randazza's The Legal Satyricon, can help there. To name just one particular, be thoughtful about how you've collected your evidence. In "High-Tech Divorce" at Trust Matters, Charles H. Green discusses how new technology lets us gather new information -- in ways that reflect very poorly on the gatherer.

Another way to make a good impression is to be organized. Evan Schaeffer at The Illinois Trial Practice Weblog is one of the best sources on that topic, including "Organizing Complicated Cases for Discovery" this week.

17. Remember the majesty

One last thing. When prospective jurors stand to take the oath, look up from your notes and remember what you're witnessing, what you're part of. Eric Turkewitz at New York Personal Injury Law Blogcaught the spirit when he wrote about the new jury-duty postage stamp:

Perhaps these stamps, if widely used, will be one tiny way to remind recipients of one of the cornerstones of our country's liberty: Power shall not rest with the few but with the many. And that is what jury duty is all about.

__________________

If you liked any of this, please know that Deliberations welcomes new subscribers, either by E-mail (the form is at the top of the sidebar) or by RSS feed. Thanks to Blawg Review's wise anonymous Ed. for letting me do this and for 24/7 advice -- and to Colin Samuels at Infamy or Praise for submitting a ton of great posts. (Colin's own Blawg Reviews, #86 based on "The Divine Comedy" and #35 based on "The Inferno," are amazing.)

Blawg Review has information about next week's host and instructions how to get your blawg posts reviewed in upcoming issues.

(Photo by Bipin Gupta at http://www.flickr.com/photo_zoom.gne?id=776043570&size=s; license details there.)

If You Could Have Only One News Source . . .

At least half the challenge in learning about juries is replacing your stereotypes, projections, and assumptions about people with real awareness. If I had to face that challenge with just one news source, it might be the Gallup Poll.

Actually it's a handful of news sources, because Gallup has different feed "channels" in which they report research results on different topics. I subscribe to all of them: business and economy, government and politics, health and healthcare, religion and social trends, and education and youth. They send me a handful of reports a week, most of which are eye-opening in some way.

Here are a few recent stories from Gallup that challenged what I thought I knew, or highlighted something I hadn't thought about:

• "Public Not That Worried About Mortgage Crisis Affecting Own Finances": "Americans appear to be far more apprehensive about the impact of the subprime mortgage crisis on the national economy than on their own financial situations."
• "The Divide Between Public School Parents and Private School Parents": "Parents with children who attend private, parochial, or who are home schooled are much more positive than parents with children in public school about the quality of education their children receive, and are less likely to report concerns for their children's physical safety."
• "Americans Put Obesity On Par With Smoking in Terms of Harmful Effects": "More than one-quarter of Americans report that obesity has been a cause of serious health problems in their family. Americans are more than three times as likely to say they are sympathetic to those who are significantly overweight as to say they are unsympathetic."
• "Most Americans Approve of Interracial Marriages": "The vast majority of whites and an even larger majority of blacks approve of interracial marriages. Older Americans -- regardless of race or ethnicity -- are less inclined to support interracial marriages than are younger Americans, but still, older Americans show majority support."
• "Sixty Percent of Americans Approve of Labor Unions": "60% of Americans say they approve of labor unions, while 32% disapprove. The public's approval rating of labor unions has not shown much significant change in the past four years." But more people approve than belong: "Only about 1 in 10 Americans say they personally belong to a labor union."

(Photo by Kate Mereand at http://www.flickr.com/photos/katmere/63785117/; license details there.)

Jury Notes From Elsewhere, September 14

Jury wisdom from other people in the last couple of weeks includes:

1.  You're always in front of the jury.  J.D. Hull of What About Clients? tells a cautionary tale to remind us that "[j]urors are watching you, your attending GC, client representative and/or your witnesses AND your associates and paralegals like hawks: in and out of session, in the halls, in the back of the courtroom, restrooms, parking lots, restaurants. Very little is missed."  He's right:  if you're anywhere near the courthouse, you're in front of the jury.

2.  A reluctant juror in Florida.  Bob Kelley of Florida Jury Selection Blog ("the cure for the common voir dire") flags a new Florida case on "a frustrating and all-too-common reality of voir dire":  the juror who's trying to get sent home. 

3.  How's that trial notebook?  Evan Schaeffer of Illinois Trial Practice Weblog reminds us that a trial notebook, started early, is a powerful focusing tool -- and he gives details on how to put it together.

4.  Mark Bennett liveblogs Racehorse Haynes.  It doesn't get better than that.

5.  Mark Bennett (same guy) wants to start a voir dire school.  Listen to his idea:

There are companies that provide ordinary people for focus groups and mock juries; why not use one to gather a mock jury panel? By my math, a panel of 24 people for a day would cost $3,000. Add in room rent, refreshments, and a pro bono faculty of talented lawyers, and a day of jury selection school could be produced for less than $4,000.

If you took 12 lawyers at a time as students, the cost per student would be less than $350 per day. In an eight-hour day, each student would get a half hour or more before the panel, receive suggestions and critiques from the faculty, and learn from her fellow students' performances and critiques.   

I'm in.

6.  A 120-page juror questionnaire.  It's being used in a murder trial in Texas.  I don't have a copy yet, but Luke Gilman discusses it here in his Blawgraphy. 

7.  Blue brain, red brain?  Daniel Solove of Concurring Opinions reports here on the new study suggesting that "[l]iberals and conservatives think in fundamentally different ways."  "I always thought that the differences between liberals and conservatives could be explained by the fact that liberals are just smarter," he says.  Cognitive Daily critiques the same study here, and isn't convinced. 

Photo by Ho John Lee at http://www.flickr.com/photos/hjl/101443399/; license details there.)

If Your Juror Were Writing On Line, Could You Find It?

"Is that a juror responding to a verdict in the comments of this blog?"  That was the E-mail I got yesterday from sharp-eyed and generous Eric Turkewitz of New York Personal Injury Law Blog.  Sure enough, it was. 

"I would just like to ask that no one judge."

There are jurors who blog, and jurors who read blogs, so jurors commenting on blogs had to be next.  In her excellent Trial Ad Notes on Saturday, the University of Washington's Mary Whisner wrote about a recent $5 million jury verdict against a Seattle doctor, in a lawsuit brought by the family of a patient who died.  Mary's post noted the contentious and sometimes nasty on-line "sound-off" comments to the Seattle Post-Intelligencer's story on the verdict.  Later on Saturday, this anonymous comment appeared to Mary's post:

I would just like to ask that no one judge neither the Dr. in this case nor the family. I was able to sit and hear this case for the past five weeks and given the task of determining whether this Dr. was negligent or not.  All I want to say is that this is unfortunate for all parties involved.

It's an innocent remark -- nothing here for postverdict motions -- but the fact that it's there at all is striking.  If you're starting to get overwhelmed thinking of all the ways your jurors might be talking or reading about your case online, you're not alone. 

After, words

The juror's comment highlights a different point as well, a point about timing.  So far, this issue has come up mostly in the context of jurors who are on line while the trial was in progress.  A more likely time to find jurors on line, though, may be after the trial is over.  At that point, they're free to talk about the case -- and they're often still caught up in the case itself, in a way that makes them want to talk about it. 

The reasons they're caught up in it vary.  Some are simply impressed by the jury process itself, like New Jersey State Senator Robert Martin.  (He's the one who wrote a New Jersey Law Journal article about the deliberations he participated in, and got the verdict challenged for his efforts.)  Others are troubled by the evidence, as Mary Whisner's commenter seems to have been.  Then there are jurors who see their verdict criticized, and take it personally.  When Seventh Circuit Judge Michael Kanne, speaking in dissent eighteen months after the trial, called parts of the jury process in Illinois governor George Ryan's trial "totally astounding," the Chicago Tribune found jurors willing to defend their verdict as though it had happened yesterday:

"It's a shame that [the defense attorneys] feel the need to come after jurors with false allegations in a desperate attempt to get their client off," juror Leslie Losacco wrote in an e-mail. "I now understand why people despise most defense lawyers."

Searching 101

How can a trial lawyer hope to find all this?  Set up searches, and keep them open until you couldn't possibly need them.  Some ideas:

• If you don't know how to set up feed searches, preferably collected in a feed reader, it's time to learn.  This skill will help you in a thousand ways, long before you ever find a juror comment.  I've tried several feed readers and right now I like Google Reader best; it's quick and meshes well with Google's other services.
• Start with searches for the name of your case, plus "jury duty" and your city.  Then expand to some of the words that a juror might use to describe the case without identifying it.
• Set the searches to scan both blogs and news stories.
• Most searches will pick up "main" stories but not the comments to those stories.  If there's a blog post or news story highly relevant to your case, click through to it and look for comments, possibly multiple times. 
• Let others know you're looking.  No amount of searching could pick up all the possible places a juror might talk about your case.  I see nearly everything about jurors on line, but I would have missed this story if it hadn't been for Eric Turkewitz.

(Photo by striatic at http://www.flickr.com/photos/striatic/1629269/; license details there.)

Finding Psychology, I: PsyBlog

I'm a Thinking Blogger!  It's a wonderful compliment from Emma Barrett's Deception Blog.  The Thinking Blogger is a meme, in this case meaning an award that is passed from each winner to five others, and thus spreads around, revealing good stuff as it goes.  It's an award that's had a great history lately; Emma got hers from Grits For Breakfast.

I'll need some time to narrow to five the list of blogs I wish I could tag.  But that's good, because it's worth spending a few posts on the best part of Emma's post, and the most useful for jury watchers:  the other blogs she honors. 

Psychology:  so much to read, so hard to find

If you're interested in juries, you need to know what's happening in psychology, and it's difficult to find strong and accessible sources.  Tracking research and news that's specifically about juries is easy; you set up searches for terms like "juror" and "jury duty" and read it as it comes.  But if you set up a search for "psychology," you'd have to troll several hundred stories a day, and still probably miss at least half of what you're looking for.  Emma's field is psychology, and her own posts (at Deception Blog and its sister blog, Psychology and Crime News) and those of the bloggers she cites are by far the best way for an ordinary lawyer to stay current in that field. 

Start with PsyBlog, one of Emma's other award winners.  Indeed, you could use PsyBlog as your psychology home base, since one of its features is an extensive guide to other psychology blogs.  PsyBlog is written by Jeremy Dean, a psychology graduate student whose prior experience in law, the Internet, and writing are all well used in this resource.  His goal is to be trustworthy and accessible, and as he explains, that's not a common combination:

The media is filled with information about psychology, much of it partly or completely misleading. Even the quality media frequently both misunderstands and misrepresents psychology. This is not surprising -- few science correspondents and even fewer general journalists have psychology degrees.

PsyBlog provides an insider's view of psychology without the journalistic sensationalism. Posts are based on articles in reputable academic journals, but without the academic terminology. It covers relationships, emotions, careers, work, stress, health, depression, music, personality, memory and loads more.

Examples

Recent PsyBlog posts that had me thinking about jury applications include:

"Good Wine Increases Food Consumption By 12%."  If you tell people they're drinking California wine, they eat more of their dinner than they do if you tell them the wine is from North Dakota.  "[I]f the wine is good, the food should be good as well," Dean posits as one possible explanation.  If that's true, how far does it go?  Is there a broader "quality carryover"?  Maybe I should wear a nicer suit to court.

"What Is The Point Of Psychology Studies?"  In a short and thoughtful post, Dean takes on the common criticism in all its forms:  ""Why do we need this study?" or "This just tells us what we already know!" or, "Rubbish!"

"People Playing The Field More Angry At Infidelity."  Anything that describes how a concrete fact about a person's background is likely to bear on that person's reactions is something a trial lawyer ought to read. 

"Ageing And The Positivity Effect," reviewing a study suggesting older people process positive emotions better than they do negative ones.  What might this mean for older jurors in an unpleasant case? 

So subscribe to PsyBlog, together with Psychology and Crime News and Deception Blog.  In future posts here, more places where lawyers can stay current with psychology.

(Photo by Victoria Peckham at http://www.flickr.com/photos/victoriapeckham/335264565/; license details there.)

Jury Notes From Elsewhere, July 27

Jury stuff from other blogs in the last two weeks includes:

1.  New cases. 

Gideon at a public defender reports on State v. Phillips, a Connecticut appellate decision in which four different jurors testified that a fifth juror was racially prejudiced.  The trial judge held that any prejudice hadn't affected the deliberations, but the appellate court reversed because that was the wrong standard:  "If the court does find that a juror is racially biased, through speech orconduct, such conduct is ipso facto prejudicial and the defendant is entitled to a new trial".   

Meanwhile, Barry Barnett at Blawgletter beat me to Wednesday's opinion in Alcala v. Emhart Industries, Inc. where Chicago federal judge Amy St. Eve refused to let the lawyers ask voir dire questions about jurors' attitudes on lawsuits and tort reform.  The Seventh Circuit said this was fine, since Judge St. Eve did ask the jurors about their experiences with lawsuits and whether they had any beliefs that would keep them from being impartial.  Barry has a great time imagining the tort-reforming juror who might have "made his way onto the jury by denying, silently to himself, that he couldn't judge the case impartially."

2.  Follow-ups. 

Further on things mentioned here:  Scott Greenfield at Simple Justice starts from the posts here earlier this week on Batson, and considers "the ugly subject of reverse Batson challenges."  (Because yes, defense lawyers, and yes, civil lawyers, Batson applies to you too.)

J. Craig Williams at May It Please The Court adds thoughts on the California Peregrine trial, where witnesses have been barred and a juror has been dismissed for reading a trial blog written by a local lawyer who's being paid to cover the trial by an anonymous law firm. 

Eric Turkewitz at New York Personal Injury Attorney Blog follows the malpractice case brought by Notre Dame football coach Charlie Weis against two doctors.  The trial was set for February, but that didn't work out; the judge had to declare a mistrial after a juror became sick and the defendant doctors rushed forward to save him.   This week a new trial ended in a verdict for the doctors. 

3.  Good advice

Adam Levin of Southern Criminal Law and Justice had a good idea, and sent a long list of questions about criminal defense practice to lawyers he admired.  Mark Bennett at Defending People has started a series answering them (the first post is a reading list), and Jon Katz at Underdog Blog has his answers here.  As always, civil lawyers can use their advice too.  From Jon, for example:   "Q.  What is the most overlooked tool of investigation?  A.  Close and deep listening."

More good advice for civil and criminal lawyers alike:  Steven Gustitis at The Defense Perspective starts a series on "building the persuasive case" with a detailed post on how to get the facts.

Finally, a tidbit from me:  remember to ask experts what their opinion is "to a reasonable degree of professional certainty in the field of ________", and you'll save yourself the many minutes of agony I spent in front of one of my first juries, having objections sustained to one attempt after another because I didn't know that.  This tip may not be needed much longer, though; Walter Olson at Point of Law reports on recent proposals to change the standard. 

4.  The high cost of trials.

Why are there fewer jury trials?  Maybe in part because so many lawyers struggle to try cases within a budget that reflects their value to the client.  Stephen Rosenberg at Boston ERISA & Insurance Litigation Blog reports on recent research suggesting that "the costs of patent infringement litigation actually exceed the economic value across all industries of patenting inventions."  Eric Goldman of Technology & Marketing Law Blog reports on how Susman Godfrey prices plaintiff's patent cases here. 

Meanwhile on the criminal side, the WSJ Law Blog reports on the eight-figure fees paid in the defense of recent prominent criminal cases.  (Some were awfully close to nine figures.)   Simple Justice argues here that big firms are the wrong choice for these cases; I don't think that's always true, but the post is good.

5.  Don't stereotype rural life

In a lovely post at Concurring Opinions, Melissa Waters points to a new Connecticut Law Review article arguing that "law's rhetoric - and therefore law itself - lags behind reality, due in part to out-dated assumptions about rural communities."    For trial lawyers, the article is a reminder that we stereotype rural jurors in the same way.  For Melissa Waters, it had a more personal connection:  the article cites an opinion by her dad, who was a federal judge in Arkansas, and she tells a nice story about him.

6.  Juror blog of the week

Here's a California man who is requesting a deferral from jury duty, because the date doesn't work for him.  His jury date is right before he leaves for Nippon, Japan, for the 2007 Worldcon -- that's World Science Fiction Conference.  Don't laugh:    over 6,000 people traveled to Anaheim, California for the 2006 event. 

Photo by Ho John Lee at http://www.flickr.com/photos/hjl/101443399/; license details there.)

The Reading Pile

Your summer reading list on juries need never run low.  If it does, run a quick search on SSRN for the word "jury."  Just in the last month, scholars have posted the following:

1.  On statistical fallacies:  "Statistics in the Jury Box: How Jurors Respond to Mitochondial DNA Probabilities," David H. Kaye , Valerie P. Hans , B. Michael Dann , Erin Farley and Stephanie Albertson, from the Journal of Empirical Legal Studies.  From the abstract: 

[W]e examine how jurors who responded to summonses for jury duty evaluated portions of videotaped testimony involving probabilities and statistics. Although some jurors showed susceptibility to classic fallacies in interpreting conditional probabilities, the jurors as a whole were not overwhelmed by a 99.98% exclusion probability that the prosecution presented. Cognitive errors favoring the defense were more prevalent than ones favoring the prosecution.

2.  On jury nullification:  "Necessity and Jury Nullification," Travis Hreno, from the Canadian Journal of Law and Jurisprudence.  From the abstract:

[T]he most striking thing about jury nullification is that nothing is done to actually prevent or punish jurors who behave this way. In this paper, I explore three rationales for why jury nullification is an officially tolerated, if not necessarily welcome, element of Anglo-American criminal law jury trials.

3.  On how long deliberations take, a topic on which I get waves of searches whenever a high-profile jury is out for awhile:  "Time to Deliberate: Factors Influencing the Duration of Jury Deliberation," Thomas L. Brunell.  From the abstract: 

The empirical results indicate that 6 person juries are no quicker than 12 person juries; as cases become more complex and/or more severe, juries deliberate longer; non-unanimous decisions take longer to reach than unanimous ones; panels that saw many potential jurors excused during voir dire end up deliberating longer than panels with fewer challenges.

4.  On witness confidence and credibility:  "Expanding the Scope of Cross Examination so that Jurors Can Infer Witness Calibration," Barbara A. Spellman , Elizabeth R. Tenney and Robert MacCoun.  (I wrote about an earlier confidence paper from these authors here.)  From the new abstract:

Jurors rely heavily on witnesses' confidence and veracity when evaluating credibility. Three studies demonstrate that jurors will regard a witness's calibration - the relation between that witness's own confidence and accuracy - as more important than either confidence or veracity when calibration information is available. We have already shown (Tenney et al. 2007) that initially jurors prefer a high-confidence witness; however, when an error allows the evaluation of calibration, jurors prefer a low-confidence but well-calibrated witness to a high-confidence poorly-calibrated one.

5.  On the demeanor of defendants and others not on the witness stand, a topic we've discussed here:  "Courtroom Demeanor: The Theater of the Courtroom," Laurie L. Levenson, forthcoming in Minnesota Law Review.  From the abstract:

This article proposes an approach to deal with non-testifying demeanor evidence that occurs outside the witness box. Given the problems with having jurors rely on demeanor evidence, courts should be carefully monitoring the use of non-testifying demeanor evidence. Appropriate jury instructions should be given, including those warning jurors on proper use of such evidence.

6.  On choosing jury trials over court trials:  "Preferences for Juries Over Judges Across Racial and Ethnic Groups," Mary R Rose , Christopher G. Ellison and Shari Seidman Diamond.  (Both this topic and Prof. Diamond's work are frequent topics here.)  From the abstract:

We asked a representative sample of 1,465 residents of Texas to state whether they would prefer a jury or a judge to be the decision maker in four hypothetical circumstances. Consistent with expectations, non-Hispanic whites favored juries over judges, particularly if they imagined themselves as a defendant in a criminal trial. By comparison, although African-Americans and some Hispanics generally favored juries, they showed a much weaker set of jury preferences. African Americans had markedly lower support for the civil jury, but support was higher among minorities with prior jury service. Among Hispanics, respondents who took the survey in Spanish typically preferred a judge to make legal decisions. We consider the implications of our findings for trust in the jury system and trust in community members as decision makers.

Don't print them all at once, or the sunscreen won't fit in your beach bag.

(Photo by Thomas Tringale at http://www.flickr.com/photo_zoom.gne?id=376900808; license details there.)

Jury Notes From Elsewhere, July 13

Jury stuff from around the web in the last couple of weeks includes:

1.  The listener and the liar.  By now you've heard about the British juror who hid an MP3 player under her Muslim headscarf, and the Cape Cod juror who tried to get out of jury by claiming he was a racist, a homophobe, and a liar.  The stories are interesting not just because they happened, but because of how far and fast they spread.  The Muslim music story is being reported in South Africa, and I had to turn off my Technorati "jury duty" search because it seemed like every personal blogger in America wanted to talk about the racist liar.  In case we needed a reminder, racism, homosexuality, and Islam are very hot topics -- and so is the idea of a juror rebelling against the system, whether by tuning out or by spouting off.

2.  Whom do jurors dislike more, lawyers or corporations?  Robert Ambrogi at Legal Blog Watch was one of the first to report a survey commissioned by the American Association for Justice (the plaintiff's bar organization, formerly ATLA), and released on the occasion of their annual meeting this week.  The survey concludes that trial lawyers, unpopular as we are, have the edge over corporations:

Americans believe that the civil justice system provides essential safeguards for them at a time when corporate misconduct is such a serious problem.

Ken Shigley at the Atlanta Injury Law & Civil Litigation Blog reports the survey in more detail and considers what it means for jury selection. 

3.  More juror blogs. I wrote yesterday about listening to jurors' thoughts as expressed in their blogs, and I owe thanks to Concurring Opinions for their kind words about that post.  (Welcome, new readers from CO.)  For more jurors in their own words, there's a great post from music-business blogger Bob Lefsetz called "What I Learned At Jury Duty."  It's a great list of lessons big and small ("19.  Sudoku rules.  Everybody was doing it.")

Or you could go to the social networking site Vox.com, where the "Question of the Day" last week was "Have you ever served on a jury?  What was your experience?"  There are dozens of responses. 

4.  More Scott Greenfield.  His Simple Justice is strong as always.  In "The Appeal to Common Sense," he takes on the familiar appeal that prosecutors and other lawyers make to juries:  "Use your common sense."  Scott thinks the argument keeps juries from seeing what might be possible in the life of a criminal defendant whose world is different from the one most jurors inhabit; and he explains how he tries to turn it on its head in his own closing argument.  Meanwhile in a post called "The Home Of The Compliant," Scott notes how hard it is for people to disobey rules, any rules, and applies the insight to juries:   

So as you argue to a jury of twelve that there is some possibility, no matter how remote, that one individual's failure to abide the rules that the government tells us required and expected of all good citizens, think about what you're asking them to do.  Noncompliance in a compliant society is unthinkable.

I know I keep saying this, but civil trial lawyers, read the criminal defense blogs.  Both those posts, for example, apply fully to civil trials.

5.  Jurors under pressure.  Jon Katz of the Underdog blog had a long and thoughtful post after the July 3 mistrial of Alfredo Prieto.  The mistrial came when a holdout juror wrote the judge that his colleagues were pressuring him like "a pack of lions protecting their kill."  "[O]ne is left to wonder," Jon says, "if, in a one-phase trial, juror psychology would make jurors less likely to reveal improprieties in jury deliberations with increased passage of time. The answer likely is yes."

(Posts on pressured jurors here include "A Jungle In There" and "I Wanna Go Home.")

6.  Good blog finds.  In other blogs:

• J.D. Hull What About Clients? has "Sensitive Litigation Moment No. 17: Informal Discovery," on the wealth of investigative information on the Internet that many trial lawyers miss:  "Next time a new case begins, resist rushing into written discovery and depositions. Step back from the discovery routine--you'll get into that bubble soon enough--and learn a few things on your own."
• Mary Whisner at Trial Ad Notes points to a study by Duke's Neil Vidmar, one of the leading jury researchers anywhere.  This paper is Medical Malpractice and the Tort System in Illinois, and it concludes "that the Illinois tort system does not appear to be the cause of the undisputed fact that doctors' liability insurance premiums showed dramatic rises."
• Elliott Wilcox at Winning Trial Advocacy Techniques Blog talks about referential questions we ask in depositions like “This blood here, is that from this general area here, or is that from another area?”  There's nothing like a deposition answer you know would convince the jury -- if anybody could figure out what you and the witness were talking about.  He gives good (in fact, good/better/best) suggestions for how to fix the problem.
• Evan Schaeffer's Illinois Trial Practice Weblog has a quote from the great trial consultant David Ball, from his book David Ball on Damages, on how juries get damages wrong because lawyers forget to explain how to get them right.  If you do civil work, it's worth posting where you'll see it often.

New Feature At Deliberations: "In The News"

I'm trying an experiment.  As of today, there's an "In The News" section on the sidebar, highlighting recent news stories and blog items that might interest those who are interested in juries. 

I don't promise this will be comprehensive, or even based on a clear standard for exclusion or inclusion -- in fact, I think I can safely promise that it won't be.  And I need to make a disclaimer; I send items to this section without editing or commenting on them, but they're not mine.  The opinions expressed in any item included in the "In The News" are solely those of the item's author, not of me or my firm.  In fact, I can safely promise I'll disagree with some of this material.

You can subscribe to these items as a separate feed if you'd like.  The news feed URL (to copy and paste into your feed reader) is here.  If you don't want a link but would like to see these items on one page, the link is here. 

Finally, I know this isn't a particularly chatty blog, but I'd really appreciate feedback on whether this new section, both its existence and its content, are helpful -- and on what other features might be particularly useful here.  E-mail goes to [email protected], or just comment below.

(Photo by Marco Cassè at http://www.flickr.com/photos/kazze/22436333/; license details there.)

Jury Notes From Elsewhere, June 29

Jury talk in other places over the last couple of weeks includes:

1.  Advanced seminar in closing argument.  Closing arguments in the Conrad Black trial took all week.  MacLean's Mark Steyn sent out partisan-but-wonderful highlights, like the way defense lawyer Ron Safer instantly wove an objection into his argument:

Safer scoffed at [a prosecution argument], pointing out that his client didn't know what proportion Conrad Black owned of Inc vs what proportion he owned of International. He didn't know what proportion of Inc was owned by Radler or Ravelston.

[Prosecutor] Eric Sussman leapt to his feet. "Objection! There's no evidence about what Mark Kipnis did or didn't know."

"Exactly!" said Safer. "That's the very point I'm making." The room fell around laughing, and defence counsel jabbed his finger at the chief prosecutor: "They have the burden of proof. A tie doesn't go to the government."

And this simple gesture by another defense lawyer, Michael Schachter:

Michael Schachter ended his closing statement by asking [his client] Peter Atkinson to stand up. Peter did, a bald sheepish man looking a little flushed and embarrassed by his moment in the limelight.

But it was worth doing. Amid all the computer screens and transcript binders and dozens of lawyers, it's easy for the three of the four defendants who aren't larger than life British peers to get lost amid the clutter.

2.  Juries and damages.  At Point of Law, David Rossmiller notes a paper by Prof. Cass Sunstein suggesting that juries and judges overestimate the harm felt by plaintiffs who have lost some aspect of a normal life (like the ability to walk, say), and underestimate the harm caused by "consistent low-level pain."

3.  When lawyers and FBI agents show up in voir dire.  Scott Greenfield at Simple Justice, prompted by a post here, tells about the recent time he had an FBI special agent and a prominent criminal defense lawyer on his jury panel, and how the trial judge handled the potential bias of each. 

4.  Rethinking assumptions.  Lawyer Ron Miller, writing at the Trial Lawyer Resource Center, makes a case for seeking out ideas that challenge your jury habits.  He writes that he has long subscribed to the idea "exposing the flaws in your own case scores credibility points with the jury and that you can frame your weaknessess better by getting out your own version of the story first."  (I've written here about a study that seems to support that approach.)  Now Miller is reading a book that argues the opposite tactic, argue only your strengths, is the way to go.

5.  Taking risks in voir dire.  Mark Bennett at Defending People answers an anonymous prosecutor who asks, "Do you think it's wise to ask the jury can they think of any reason why the defense lawyer may not want his client to testify? What if they say 'Because he has a record'?"

Everything I've missed, and there's a lot, is at this week's Jur-E Bulletin as always.

Photo by Ho John Lee at http://www.flickr.com/photos/hjl/101443399/; license details there.)

Announcing The Deliberations Library Of Sample Juror Questionnaires

I know you're out there.  I see your searches.

They come in steadily all week, then surge on the weekend.  "Voir dire questions murder case."  "Illinois personal injury voir dire."  "Voir dire questions in a fraud trial."  "Sexual abuse case voir dire."  "Jury voir dire in a civil rights case."  Sometimes you spell it "voire dire," but you still end up here.

Maybe you're working ahead, because you know that thinking early about the jury makes you think about the case in new ways.  Or maybe your trial is Monday morning; your jury instructions and motions in limine and exhibits are in, and you're turning to voir dire because you finally can.   You may already have an outline and are looking for a checklist to see what you missed, or you may be starting from scratch.

Whereever you are in the project, you're not looking for a bunch of musing, occasionally amusing essays that may or may not add up to something helpful.  You're looking for one list, all in one place, something you can use. 

Announcing . . .

For you, voir dire question searcher, Deliberations announces its new Sample Juror Questionnaires library.  (There's a link on the sidebar.)  On this page is a growing collection of jury questionnaires, either given or proposed, from actual cases.  Use them to brainstorm or cross-check your own voir dire questions; as source material in asking your judge to allow a jury questionnaire; or just as a way to think about how an individual juror's background and experiences might shape the way she hears your case. 

Please feel free to submit questionnaires for this page, whether approved by the court or merely proposed, and ask your friends to do the same.  If you send one, I'll credit you as author or contributor, and link to your website if you'd like.  You can E-mail submissions to me at [email protected]; please tell me a little about the case as well, so I can describe it helpfully.  Likewise if you're the author of something I've already posted and would like credit, let me know.

(Photo by Korean Resource Center at http://www.flickr.com/photos/krcla/362137815/; license details there.)

Jury Notes From Elsewhere, June 15

Things of interest to jury watchers and thinkers over the last couple of weeks:

1.  Seale convicted.  In breaking news, James Seale's jury convicted him last night of kidnapping and murdering teenagers Charles Moore and Henry Dee in 1964.  (I had written about the voir dire here.)  Congratulations again to Matt Saldaña and the Jackson Free Press for their coverage; Matt's description of closing arguments shows again how powerful a simple this-is-what-I-saw report can be.

2.  The British survey.  They're talking juries in England, after the release of a four-year study on the demographic make-up of juries there and how racially mixed juries treat defendants of different races.  I haven't read the study itself, and the headlines on it are a puzzle at first. 

The government news release proclaims, "Juries and the jury system in England and Wales are fair, unbiased and balanced, according to a groundbreaking study today," and continues, "The new research shows in particular that the jury system does not discriminate against people from black and minority ethnic (BME) backgrounds."  Not against them, but how about for them?  The Guardian's story begins, "Black and ethnic minority jurors show more leniency to black defendants than their white counterparts in court, research commissioned by the Ministry of Justice revealed yesterday."  The Economist seems to play it pretty straight:

Contrary to widespread belief, no discrimination was found. In an elaborate case simulation at London's Blackfriars court, which involved more than 300 jurors on 27 juries, the verdicts were all remarkably similar, regardless of whether the defendant was black, Asian or white.

This does not mean that a defendant's race did not influence individual jurors. Black and Asian jury members tended to show more leniency toward black defendants (though not, interestingly, toward Asians), whereas white jurors were usually softer on white defendants. But these individual biases did not affect the collective verdicts of the juries, the report says. Ten of 12 jurors must usually agree for a verdict to be reached, so individual biases cancelled each other out.

3.  New source for research.  Empirical Legal Studies Blog reports on a new "journal" at SSRN, one of the main places to look for social science research on the Web.  The new journal, called Law and Courts,

will distribute abstracts of working papers, forthcoming articles, and recently published articles dealing with judicial decisionmaking, including the determinants of decisions, the influence of outside parties and other institutions, and the societal impact of those decisions.

4.  Getting what you paid for.  Fellow Milwaukee law blogger David Lowe just won a case where his wheelchair-bound client claimed that a transit van driver failed to fasten the van's restraints properly, and David's client was hurt in an accident.  His post on the trial offers this cautionary tale on how that decision you made on whether to pay for six or twelve jurors can come back to haunt you:

The main legal issue that arose at trial had to do with attrition of jurors after the trial began. Thirteen jurors were originally empanelled. On the second day of trial, a juror called in by cell phone to report that she could not find a parking place, apparently due to a large motivational speaker conference held near the courthouse, featuring Zig Ziglar, Bill Cosby, Suze Orman, Colin Powell, Ed McMahon, Chicago Bears head coach Lovie Smith and Green Bay Packers head coach Mike McCarthy. [It's true; traffic that day was a mess.]  After waiting 45 minutes, the trial court excused her. The next day, a second juror became unavailable due to a death in the family. The defendant was unwilling to stipulate to proceed with the remaining 11 jurors, and moved for a mistrial. When the action was filed, the plaintiff had demanded 12 jurors but did not pay the fee at that time. The defendant filed an answer requesting only six jurors, and paid that amount. The plaintiff had later paid for the other six jurors. Because the defendant had not requested or paid for 12 jurors, the court denied the motion for mistrial. Finding the Wisconsin statutes unclear, and no applicable case authority, the trial judge relied upon the words of Mick Jagger: "You can't always get what you want. But you get what you requested." The court accordingly sent only six jurors to deliberate.

4.  Judges, especially Robert Bork, acting silly.  Eric Turkewitz at New York Personal Injury Law Blog has another fun post on judges whose antics in the news make the jury system look great by contrast.  (This one is inspired by the judge who claimed $54 million against the dry cleaners who ruined his pants, and then cried at trial.)  Eric also has a great open letter to Robert Bork on how he might salvage his slip-and-fall case against the Yale Club, which so far has mostly made him a laughing stock.  It's a post that all big-firm litigators should read, whether or not a famous client is pressing you right now to file a complaint in an area you don't know anything about.

5.  Mark Bennett and Scott Greenfield discuss juries.  Mark Bennett at Defending People imagines a world where we are all reminding each other about juries' power to nullify.  I wrote this week about a recent reminder I got that jury nullification isn't all freedom and glory; Mark's post sets out the other side strongly, and it's funny:

"Did you know that judges lie to juries in criminal court every day? Do you know why the criminal juror is the most powerful person in the criminal justice system? Did you know that jurors don't have to follow the law?"

"Dude, I just asked if you preferred paper or plastic!"

In another post, Mark features a comment from his reader John Gioffredi about the lawyer in Mark's trial who started voir dire with "Good morning!  I said good morning, class!" and how opposing counsel might take that on.  Scott Greenfield of Simple Justice joins in the comments.  (They're talkative, those criminal defense bloggers.)  I'll leave it to them to explain the response they were considering, with the warning that it's not for beginners, and that even a veteran should be careful.  The jurors don't know you yet, and you have a lifetime's worth -- or in civil cases, at least several months' worth -- of anger they don't share.

6.  The pick of the criminal defense blogs.  Speaking of criminal defense lawyers, I'm very honored to find this blog in Jamie Spencer's survey of blogs you folks read often.  Civil lawyers, look at the Top 11 list (I'm way out of that league), and add some to your reading list even if you couldn't find criminal court with a map.  These people know trials.

Jamie had another post this week, with advice to a lawyer just starting a blog.  It was familiar to me, and I bet to many others.  Jamie was one of the first people to find this blog, and offered candid suggestions heavily sprinkled with encouragement.  He's one of the most generous citizens of the blogosphere.

Ready For Juror Glitches: Tips From A Trial Judge

Friday's post listed some of the juror issues that often come up in trial.  You're going along, and you suddenly learn that a juror is anxious or upset; or can't hear or speak English; or has background that's relevant to the case; or recognizes a witness in the middle of the trial.  When something like this happens, you face what I've called an Instant Decision Moment.  You need to decide within minutes, sometimes within seconds, whether you're going to ask for the juror's dismissal, and if so how loudly. 

The problem for many lawyers is that they didn't prepare for this part.  They have a neatly organized trial notebook with outlines for an engaging voir dire, a gripping opening statement, simple direct examinations and scorching crosses.  But when a juror says "Hey, I know that guy," or "Hey, he's eyeballing me," there's no section in the notebook to turn to. 

Simple tips to prepare:  pictures and a bench book

We've talked before about some of the in-the-moment factors that can guide your reflexes here.  But it's also possible to prepare. Here are two simple tips that will help, both sent by Milwaukee Circuit Court Judge Rick Sankovitz in response to other posts.  One focuses on prevention, the other on cure:

1. To prevent jurors recognizing witnesses too late, use pictures.  "On the issue of jurors who know witnesses but don't realize it until they see the whites of their eyes, I often make this recommendation to lawyers who use display technology at trial -- in voir dire, show the panel pictures of the witnesses who will be called.  The display of technology may create a good first impression (all the caveats about technology in the courtroom apply, of course), and it may weed out this problem, which happens more often than people think."
2. Do what the judge does:  get a bench book.  "A pointer I always like to share with lawyers putting together their trial notebook - get the benchbook.  Judges regularly turn to it, and it's nice to be able to walk the judge through the analysis that most judges tend to consult when confronted with an Instant Decision Moment."

The bench book tip is elegant, not just for jury issues but for whatever comes up.  As the judge is reaching over her shoulder for her own copy, why shouldn't you be reaching for yours? 

State bench books are commonly available; Wisconsin's can be purchased here in hard copy and here on CD.  For federal court, both the bench book and an extensive Civil Litigation Management Manual are free, yes, free.  Download them, and an amazing wealth of other resources, from the Federal Judicial Center.  (That link is to their catalog; simple searches will find them from there.)  What you'll learn is that both federal documents are silent on when jurors must be dismissed (although the Management Manual is full of other good juror information), so you'll want to be ready with case citations in federal court. 

__________________

Notes: 

1. Judge Sankovitz isn't just a source of good ideas.  More important, he's well known here for his work for indigent litigants.  His advocacy has inspired many lawyers to take on more pro bono cases.  Most recently he chaired the Wisconsin Bar's Access to Justice Committee, whose report describes the urgent and unmet need that remains. 
2. The weekly edition of Blawg Review is at Blawg's Blog today, with a very comprehensive look at other law blogs you might want to add to your reading list, and a very kind compliment to this one.  Thanks.

(Photo by Scott LaPierre at http://www.flickr.com/photos/pierrelaphoto/431468152/; license details there.)

Look, Dad, I'm On The Radio

If you have a blog and you do a radio interview, I'm told you risk cosmic imbalance unless you close the loop by mentioning the interview on the blog.  So:  I'm on the Lake Effect show today on Milwaukee's public radio station, WUWM.  The archive link is here and my part is about fifteen minutes long. 

I can't opine on my own performance, but the rest of the show is really good, including Ann Althouse; a wonderful Milwaukee independent bookstore called Woodland Pattern; a guy who walked and ran Wisconsin's Ice Age Trail in three weeks; and tips on "How To Eat Like A Milwaukeean," which of course you need to know if you come here.

(Photo by de jäck Mamsäll at http://www.flickr.com/photos/75471113@N00/160080677/; license details there.)