Too often, the mindset in negotiating is completely adversarial – we are good, they are bad; we are right, they are wrong; we are just and they are unjust; and, perhaps most perniciously, we are reasonable and they are not and will not be so. Even Ronald Reagan didn’t posture in this way – his
Consider an argument you made to your jury just before they deliberate and hand you your hard-fought victory. Did you persuade them or did you convince them? Perhaps you just dissuaded them from finding for the other side. However, if you dissuaded them, why can’t you also say that you dis-convinced them? Or disvinced them?
We have all seen it. We have all seen the lawyer or the student so involved with her notes or his script that they seem to have uncoupled from the courtroom itself. I take that moment to study the faces of the jury. What are they doing while the scribe at the podium has a
It may be silly but bears repeating – experts are people too, subject to a variety of influences that may distort their thinking, approach and conclusions without realizing this is occurring. This understanding of expert non-neutrality is nothing new – the 2009 report STRENGTHENING FORENSIC SCIENCE – A PATH FORWARD emphasized this. Some initial and
We are in a new world, aren’t we? I am starting to get this strange feeling that the vocational “me” is really just a hologram—merely an image of me that others interact with. I see him too. He’s there in the lower corner of my screen, and he can’t even make eye contact with me!
Given that the Rules of Evidence were developed without regard to, or prior to the development of, principles of cognitive science, one might expect courts to use scientific research to mediate those rules and, especially, to inform the exercise of discretion. But as two divergent lines of cases show, although each involves how a visual
In the time-bending blockbuster Inception, Leonardo DiCaprio’s character devises an elaborate method of mental manipulation: implanting an idea in another person’s head so that the recipient actually believes the idea is his own.[1] The reality of implanted ideas is nearly as strange as this movie. I would guess that lawyers are generally suspicious of witnesses’
Do mask-wearing witnesses deprive criminal defendants of their right of Confrontation? Does impairing the ability of jurors and lawyers to fully assess ‘demeanor’ result in less reliable trials? Can jury selection be fair of prospective jurors’ faces are covered? Or is this all a Shakespearean “much ado about nothing” because we – the great majority
In every basic trial advocacy class I teach, I always read my students a snippet of jury selection advice from the renowned Clarence Darrow. At the time he authored this advice, it was “state-of-the-art.” However, as soon as I start reading it to them, my students will scoff, laugh, or gape in shock. Says Darrow,
We live in a time where every action we take, every premise we rely on, warrants scrutiny through the prisms of race and implicit bias. This reckoning, long overdue for too many individuals and institutions, was brought about by the murder by police of George Floyd and the consequent outpouring of grief, rage and commitment.