Abstract
On the Jury Trial, by two Texas attorneys, provides an easily digestible and refreshingly approachable exploration of the jury trial process that should be read by any legal or criminal justice professional who might find themselves in a courtroom. Whether an attorney, litigant, expert, investigator, or lay witness, readers will benefit from this well-constructed souffle of guidance that is part law school education and part social psychology, with just a dash of voyeurism.
In social science research parlance, this engaging work employs observational research and secondary data analysis to draw readers into the trial experience. It is an obvious choice for trial practice classes that often appear on law schools’ first-year curricula. It also would be useful for prelaw undergraduates and justice professionals such as police, investigators, and forensic evaluators who will benefit from exploring how and where their expertise may be impacted by behind-the-scenes lawyering. Finally, all new trial lawyers should consider this required reading before their first foray into a courtroom.
The bulk of the text tracks the actual trial practice, from voir dire, through direct- and cross-examination, and ending with jury charges. This section of the book follows a logical, chronological pattern that mirrors the progress of a trial. Each chapter provides a brief introduction of a concept and defines key terms, then provides in-depth analysis of portions using real trial transcripts. Readers feel submerged in the trial experience through compelling excerpts from trials that are robust in content but succinct enough not to detract from the flow of the text.
Transcript excerpts have been chosen with care and lend these sections a bit of voyeuristic fascination. You get the sense that you are there. Readers will cringe at stilted cross-examinations, wince when green attorneys ask one question too many, and smile at lengthy passages from exceptional closing arguments. Sections in this main part of the book provide a bird’s-eye view with a stop-action button. Cases unfold through transcripts and text, then the authors enforce a pause with reflection, asking readers to glean a particular point. It is an effective teaching technique.
Perhaps the most persuasive use of the excerpts was a lengthy exposition on how to work with expert witnesses. Anyone who intends to cross-examine an expert or to serve as an expert should review the questioning of Dr. Chang in the chapter on direct- and cross-examination. One of the author’s main bits of advice comes in a simple yet brilliant and tightly constructed direct examination model: “do, but also seem” (p. 39). Authenticity and believability are also key, whether explaining the evolution of a patented product, as Dr. Chang did, establishing an alibi, or developing a damages model. Likewise, their advice on how to coach witnesses applies to defendants: Keep the answers short, do not guess, and only answer the question that is asked. This book’s lessons apply to any professional situation in which knowing the environment and the players matters. For example, the authors encourage the use of a straw man for jury selection. They suggest that attorneys create a hypothetical “nightmare juror” and measure all potential jurors against that hypothetical. This helpful thought exercise applies equally to any number of situations. In policy and planning, anticipating friction and feedback are critical. The nightmare juror could just as easily be the nightmare county commission or the nightmare interest group. Relatedly, the authors encourage practitioners to research their judges and other parties deeply. Again, the same could be said of other professions. Knowing the playing field helps to level it or perhaps tip it in one’s favor. As the authors remind repeatedly, there is no such thing as too much preparation or too much information about the environment.
The authors also provide worthy lessons on messaging that cut across disciplines. Incorporating basic social psychology principles, they encourage opening statements and closing arguments developed through “passion and reduction” delivered simply and appealingly. Their writing style models what they advise. They use a mix of sentence structure, tempo, and style. Channeling Aristotle, they encourage attorneys to structure their arguments through an intellectually accessible 3-point process. Provide a statement, then give three concise reasons why the jury should believe that statement. Again, this same lesson applies to any environment in which persuasion is key, be it the courtroom, the boardroom, or congressional chambers.
The authors include several catchy truisms that could be the punch lines on a certain class of motivational posters, but they stop short of being cheesy. Readers are reminded that “lawyers learn by listening” (p. 74), to “start with the end in mind,” (p. 115), and that “more is less” (p. 142). A little hackneyed, but in context they work.
The section on professionalism resonates with anyone who works with data development. The chapter on judges, which relates to the lessons on professionalism, can be summarized as follows: Judges’ decisions are only as good as the evidence/information they receive. Or even more succinctly, garbage in, garbage out. Judges do not generate evidence. They must make decisions on what they are provided. Trial attorneys owe it to their clients, the jury, and the judge to produce as much high-quality evidence as possible. Relatedly, reputation and integrity matter. They are hard to earn, easy to lose, and important tools in the trial kit. The same could be said of any social science research. The quality of the research depends on the quality of the data and the quality of the analysis.
Finally, the most practical section of the book is the last. It is, in essence, a practice guide. Each chapter ends with a practice checklist, but this last section casts aside pontification to provide the true nuts and bolts of quality courtroom work. This section is a relative novelty and not something that is often seen in social science research, but perhaps the authors are setting a trend.
While this work gives little attention to the technological aspects of modern trial work, or to the benefits of using technology to develop evidence, profile jurors, or research the courtroom players, it otherwise provides an exciting and highly usable approach to teaching trial practice. Bottom line: Read it if you want to be a lawyer, work with lawyers, or just want to think like one for a little while.