Category Archives: Evidence

The Bygone Era of “Junk Science”

620-best-television-comedy-tv-show-ever-sanford-son.imgcache.rev1352136944844I remind myself that only a fraction of readers will be familiar with that cultural chestnut, Sanford and Son. You might ask: what’s worse, 70s era sitcoms built upon dismal racial stereotypes, or our present preoccupation with reality television showing us, in ever higher definition, how awful we really are? I digress, however; that’s a topic for a different blog.

Instead, let’s discuss “junk science.” In the majority of cases tried before a jury, the parties will desire to present the testimony of an expert in some field, such as injury or disease causation, standard of care or mental capacity. Of course, the opposition will want, if possible, to preclude this evidence. Popular techniques to preclude the evidence involve arguing either (1) that the expert is not really an expert at all; and/or (2) his opinion is not scientific–and thus likely to mislead the jury.

In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held for the first time that, to be admissible, scientific evidence must be both scientifically valid and properly applicable to the facts at issue in the case.  The key here is scientific validity. To put this in historical context, the prevailing standard before Daubert derived from Frye v. United States. Under the Frye standard, expert opinion based on a scientific technique was only admissible where the technique was generally accepted as reliable in the relevant scientific community. This was also termed the “general acceptance” standard.

In theory, the Daubert Court was interested in weeding out “junk science,” though it used the term “absurd and irrational pseudoscientific assertions.” Later, in Kumho Tire Co. v. Carmichael, which extended the Daubert holding, Justice Scalia, in his concurring opinion, wrote that that a trial judge has “discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky.” Don’t call me fausse.

What is this “junk”? Justice Stevens gave one illustration, in General Electric Co. v. Joiner. He said:

“An example of ‘junk science’ that should be excluded under Daubert as too unreliable would be the testimony of a phrenologist who would purport to prove a defendant’s future dangerousness based on the contours of the defendant’s skull.” 522 U.S. 136, 153, n.6 (1997) (Stevens, J., concurring in part and dissenting in part).

Oh, if only this worked! Alas, it would probably be about as accurate as the use of Penile plethysmography to convict sex offenders. This marginally invasive (I’m sure) test measures blood flow to a defendant’s penis to determine the level of sexual arousal as he is exposed to sexually suggestive content. That truly is “junk” science. (I couldn’t resist.) I can only assume the test, its use, or both, were conjured by someone who really liked Burgess’ Clockwork Orange.

0811868656Because I’m in a particularly philosophical mood, I’ll point out that one era’s “junk” is another era’s treasure. See, e.g., Copernican Revolution, Newtonian physics, Einsteinian Relativism, quantum mechanics, Mendelian inheritance. This phenomenon is known as a paradigm shift. Picture the egg dripping from Justice Stevens’ face when, in 2056, the last brain-researcher finally concedes that comparison of the contours of an individual’s skull is in fact the very best way to predict his propensity to inflict future harm.

In 2000, Federal Rule of Evidence 702 was amended in response to the line of cases starting with Daubert and culminating with Kumho. That rule now limits the testimony of an expert as follows:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.”

Interestingly, many federal courts have resisted applying Daubert and the amended FRE 702. A sweeping article by George Mason University Law Professor David Bernstein, pointed out that, fantastically, many judges were either unaware of the amendment to one of the most important rules of evidence (really?) or they deliberately ignored it.  See, Bernstein, “The Misbegotten Judicial Resistance To The Daubert Revolution,” 89 Notre Dame Law Review 27, 50 (2013).


Will You Give These Jurors What They Want?

jury1A couple of weeks ago, I sent fellow blogger and trial consultant Rich Matthews an email asking if he would comment on a post I was thinking about writing. It would be called “Avoid These Five Ways Of Alienating The Jury.” I was expecting him to provide a laundry list of “don’t dos” if you want to stay on a jury’s good side, such as wearing a bow tie,† showing up late, interrupting witnesses, etc.

Instead, Rich offered a much shorter list of ways–just two–to give the jury what they want and expect. On reflection, Rich’s list of “dos” made much more sense than my proposed list of “don’ts”. Here’s what Rich said:

“I think jurors want two and only two things from counsel, and get alienated easily when these are violated: help with understanding the material, and not wasting their time. That’s it. As obvious as that might sound, all courtroom lawyers should do a really honest reflection on their own trials and notice how many times they run afoul of either or both of these unconscious demands jurors have. That third witness you put on to say basically the same thing? Wasting jurors’ time, and they will resent you for it. That technical witness who was not understandable to them? Flunked both. A closing argument that didn’t explain [relevant rules, damages, verdict form, whatever] well enough? Didn’t help them with the material. I suggest that as counsel is planning the trial sequence, run everything through that filter; will it help jurors understand the material, and does it waste their time as THEY will judge it? Unless it’s ‘yes’ to the first AND ‘no’ to the second, leave it out. (Bonus hint: the first place to look is your witness list. Most of the time, lawyers would be better served to use fewer witnesses than they do. Wasting time in this manner just frustrates jurors if they don’t perceive each additional witness is adding new information or understanding.)”

Rich’s suggestion that what the jury wants most is help understanding the material echoes a point Professor McElhaney makes in the opening chapter of Litigation, entitled “The Guide.” He writes:

“You are the guide who knows the territory, the one who can be trusted to steer the jury straight throughout the entire trial.

Does it work? Imagine for a moment: Suddenly you find yourself in the middle of an unknown swamp. You don’t know where you are or how you got there. All you know is that somehow you  have to find your way out. You have no compass. There are no roads or trails, no signs or maps, no shadows or guiding stars. As you look around, you see two people, each saying there is only one way out. The problem is, each one is pointing in a different direction.

Which one do you follow–the one who has the suitcase with the collapsible legs, who wants to sell you one of the watches on his wrist; or the one who is pointing out landmarks and is helping you understand the terrain?” (Litigation (ABA 1995), at 4.)

Rich’s point about not offering duplicative testimony which the jurors judge as a waste of their time brings to mind this comment by another notable trial advocacy guru, Professor Thomas Mauet. In his Fundamentals of Trial Techniques, Professor Mauet points out that:

“Whom you call as witnesses to prove your case is frequently not an issue. You simply must call the witnesses you know of to establish a prima facie case, and there is no room for choices. Most of the time, however, you will have choices. . . In deciding to call certain available witnesses, remember the following considerations:

1.  Do not overprove your case. Many lawyers call far too many witnesses, thereby boring the jury or, even worse, creating the impression that the lawyer doesn’t have confidence in her own witnesses. In general, calling a primary witness and one or two corroboration witnesses on any key point is enough. It’s usually best to make your case in chief simple, fast, and then quit while ahead.” (Fundamentals of Trial Techniques (3rd Ed. 1992), at 388-89.)

I think Rich’s approach to giving the jurors what they want–rather than trying to walk on eggshells not to alienate them–is by far the better approach. Thanks, Rich!

†Truth be told, I have no problem with bow ties, and I expect most jurors don’t, either. A bad, porno movie mustache, on the other hand, will not be tolerated (except by jurors with their own bad, porno movie mustaches).


What Jurors Bring Into The Deliberation Room

jury_room_525-300x204On Wednesday, a 12-member New York jury returned a verdict against Michael Steinberg, a senior portfolio manager with hedge fund SAC Capital Advisors LP, finding him guilty of trading using inside information that allegedly passed through four people before it reached him. An article in today’s Wall Street Journal about the deliberations of the jury forewoman, Demethress Gordon, provides a glimpse into how jurors bring their own experiences to the deliberation process, sometimes filling gaps left open by the trial attorneys.

Ms. Gordon entered the deliberations convinced Steinberg was innocent. The evidence against Steinberg included tips passed to him from his subordinate, an SAC analyst named Jon Horvath, about Dell and Nvidia. Steinberg allegedly placed trades within minutes after receiving the information from Horvath, who was a cooperating witness in the government’s prosecution. Ms. Gordon was initially not convinced by the evidence that Steinberg knew the tips were the fruits of confidential, “inside” information. She rationalized, as the story points out, “he [Steinberg] was the boss and relied on his staff to supply him with information they knew to be proper.”

Following the first day of deliberations, however, Ms. Gordon attended a screenwriting class “that happened to focus on the subtext of characters’ actions.” This made her receptive to an analogy offered, during the second day of deliberations, by another juror “who told her to imagine walking through the door. ‘He told me to go through the door,’ she said. ‘I understood what he meant, without him having to say, ‘Walk to the door. Turn the knob. Step through it.'” It “suddenly clicked. People can understand more than they are told . . . Mr. Steinberg must have known the information he received was based on nonpublic information . . . even if it wasn’t explicitly made clear.” After Ms. Gordon changed her mind and explained her reasoning to the sole remaining hold-out, who agreed, the jury returned a unanimous guilty verdict.

This perfectly illustrates how jurors will sometimes draw from their own outside experiences or intuitions to fill a problematic chasm in the elements of a case (or a defense). While I don’t know more about the evidence either side presented, this suggests to me (1) that the prosecutor did not have or put forth sufficient evidence that Steinberg would have understood, explicitly or implicitly, that the analyst’s tip was inside information (though it is telling that 10 of 12 jurors were apparently ready to convict at the end of the first day of deliberations), and/or (2) Steinberg’s defense attorney did not sufficiently anticipate and exploit this gap in the evidence. Either way, it’s interesting to be a fly on the wall.


Some Ways To Take Down Your Opponent’s Expert

0412rodneytrial6Here are some ideas, courtesy of Professors McElhaney and Mauet, on effectively cross-examining your opponent’s expert witness at trial.

1. Make Him or Her Your Own Expert. Professor McElhaney suggests you look for places where your opponent’s expert agrees with your theories in the case. For example, if, in a personal injury case, both experts mostly agree on the severity of the damages and future treatment, but differ on causation, focus on where there is agreement. He says:

“Note that the defendant’s own doctor admits that the plaintiff will be subject to sudden seizures for the rest of his life; that this form of epilepsy can only be treated, not cured; and that the plaintiff’s condition can put him out of work as a machinist and means he can never drive again.

If you have a strong case on causation, you may decide it is better to make this witness your own on the issue of damages than to try to beat him down on the subject of cause.” (Litigation (ABA 1995) 165.)

2. Attack His or Her Qualifications. “No matter how well-qualified the witness,” McElhaney reminds us, “there is always a higher level he has not reached.” (Id.) Used subtly, this can also serve to bolster your expert’s credibility if he/she has better credentials.

3. Narrow His or Her Expertise. Professor Mauet  points out that, “[o]ften an expert will appear to be highly qualified, yet his actual expertise and experience are in areas different from those involved in the case. The cross-examination technique is to build up the witness’ real expertise, then show that this particular expertise is not directly applicable to the type of case on trial.” (Fundamentals of Trial Techniques (3rd Ed. 1992) at 266.)

4. Attack His or Her Facts. I see two possibilities here. One is if you can establish an opinion rests on a faulty or controversial factual premise, such as a date, measurement or time. The other, highlighted by McElhaney, capitalizes on the fact the expert did not do factual investigation himself, but is relying instead on the reports of others. He gives an example of an effective examination:

“Q. Doctor, can we agree that your opinion can be no better than the information on which it is based?

A. Well, yes, I guess so.

Q. If the information you have is not accurate, then the opinion would have to suffer too?

A. Of course.

Q. Which is why you would rather gather the information yourself than have to trust some source you have not worked with before?

A. Absolutely.

Q. But you were not given an opportunity to do that in this case?

A. Well, not exactly. No, I wasn’t.” (Litigation, 167.)

5. Vary The Hypothetical. McElhaney explains this approach as follows:

“You are permitted to change the facts around to see at which point they alter the expert’s opinion — depending on whether the question on direct examination originally was asked as a hypothetical.

You can insert facts you feel were left out on direct, or take out facts you feel should not have been included.” (Id.)

Let me go on record here that I view this as an advanced technique, and an opportunity to ruin an otherwise solid cross-examination. Ideally, you would have covered this ground with the witness in a pre-trial deposition, so you know what the answer should be and can hold the witness accountable if he/she strays. Otherwise, an experienced expert might hand you your head on a stick if you are not meticulously prepared.

6. Use The Expert To Bolster Your Own Credibility. Mauet suggest it can be “useful to cross-examine an expert to establish your own expertise in the subject. You can do this by defining technical terms or describing technical procedures and having the expert agree that you have defined or described them correctly. Use a treatise to obtain accurate definitions and descriptions. If this expert disagrees, you can impeach him with the treatises.” (Fundamentals, 267.)

7. Establish His or Her Compensation Bias. Mauet writes: “Inquire into professional fees charged and whether they have already been paid.” But he reminds us to “[k]eep in mind . . . that trials are a two-way street. Your opponent can do to you what you contemplate doing to him. Before pursuing this approach, make sure your own experts are less vulnerable than your opponent’s.” (Id., 266.)

8. Identify Additional Steps The Expert Did not Take. Mauet suggests we “[d]emonstrate that the witness did not do all the things a thorough, careful expert should have done. Demonstrate that a variety of tests could and should have been performed to arrive at a reliable opinion in this case.” (Id., 267-68.)

There. Now go get ‘em.


What Your Presence Tells The Jury Before You Say A Word

pokliI’ve previously written about how young lawyers enjoy an undeserved reputation for honesty. It’s a gift. Don’t squander it.

Similarly, when jurors encounter a trial lawyer for the first time, the lawyer’s mere presence in the courtroom says many things before the lawyer opens her mouth. This observation comes from the trusted Professor McElhaney. In a chapter from Litigation (ABA 1995) entitled “The Most Important Witness,” he suggests that a trial lawyer’s presence in the courtroom implicitly says to the jury:

  • “I have studied the facts and understand what this dispute is all about. You can trust me to steer you straight.
  • I have carefully screened the witnesses. I will only call those who will tell you the truth.
  • I know the law that governs this case. Justice is on our side.
  • If I introduce evidence, it is because it is important.
  • If I leave something out, it is because it is not important.
  • And If I attack a witness, it is because he is not telling the truth.” (Id. at 9.)

Of course, just as with a young lawyer’s unearned reputation for honesty, each of the above assumptions can be quickly proven wrong. Witness choice is a perfect example. While you sometimes have no choice but to present a dodgy witness, this should not be undertaken lightly. As Professor McElhaney points out:

“[T]he very act of putting the witness on the stand implies that you are vouching for his credibility. . . . Whom do the jurors blame for a bad witness? Listen closely to the comments clerks and bailiffs hear every day. ‘I wonder where she got that guy?’ ‘Where did he dig him up?’ ‘Can’t he find someone better than that?'” (Id. at 11.)

Another opportunity to prove the jury wrong in their initial positive impression arises from how you organize your evidence presentation, including direct examination of your witnesses. How you conduct the examination, what you leave in and what you leave out can affirm or undermine the assumption that “If I introduce evidence, it is because it is important.” As McElhaney says it:

“A confused, rambling examination suggests a disorganized understanding of the facts. Not only does it fail to tell the story effectively, a poor direct examination is the living picture of a guide who cannot be trusted to lead a jury through the thicket of facts in the case.

Dwelling at length on small points is a little different. At first it suggests that the seemingly insignificant detail will become important later on.

Why? Just putting it in the case says it is worth the jury’s while.

So the first time the fact that took so long to explain turns out to be meaningless, the jury feels cheated. When it happens again, they wonder whether the lawyer is trying to kick sand in their faces or is just inept.” (Id.)

The jurors are your friends, your students and your wards. Don’t kick sand in their faces.


Edward Bennett Williams: Don’t Lose Your “Instinct For The Jugular”

8300330C_1I found a fantastic interview of trial legend Edward Bennett Williams from the Winter, 1986 issue of Litigation which I intend to read and re-read like the Bible.

Among the myriad of topics he discusses was the kind of “team” he works with at trial, which led to a discussion of trying “big document” cases. Many lawyers, even seasoned trial lawyers, tend to make the assumption that the bigger the issues to be decided by the jury, the more witnesses and paper–documents–are needed to prove a party’s case or defense. If an outsider was to simply look at the kind of discovery conducted in any big case, he or she would easily assume that, if the documents were worth seeking in costly discovery, they must have been germane and, ultimately, indispensable to winning.

Williams takes issue with this kind of thinking. He suggests that, in all but the most complex cases, lawyers tend to “multiply documents” unnecessarily. In the end, being unnecessarily document intensive does not further their clients’ interests or bring them closer to victory. Responding to interviewer Priscilla Anne Schwab, Williams says:

“Mr. Williams: I was brought up in a school of practice in which one person tried a case and tried it in toto. Even with some help, in the courtroom there was only one voice. And I like that.

Ms. Schwab: What about a complex case, say, an antitrust action with thousands of pages of documents, hundreds of witnesses. How can you handle that in a courtroom singlehandedly? With total control?

Mr. Williams: My impression of that so-called ‘big document’ case is that 95 percent of the documents are worthless. Just piles of paper to impress the jury. One of the great tragedies of litigation today is these paper wars. The whole profession gains nothing but disrepute when one of these big firms puts 21 lawyers on a case, and they start multiplying documents, paper times paper.

Now obviously in a few cases, the issues are so complex that there are, maybe, thousands of documents. But my experience has been that law firms multiply paper unnecessarily. They make litigation more prolific than necessary. They don’t have an instinct for the jugular. They don’t isolate the major issues of the case and simplify them into comprehensibility. And they engage in massive overkill in discovery.

Ms. Schwab: But there always seems to be a need for more discovery. You say yourself you must uncover every fact, however remotely relevant.

Mr. Williams: True, but discovery today is not used primarily to uncover facts. It’s used to delay, to obfuscate, and, too often, to replace real investigation.” Litigation, Vol. 12, No. 2, Winter 1986, p.30.

As an armchair expert on the topic of laziness, I wonder if the tendency to use excessive discovery rather than going “for the jugular,” as Williams puts it, stems from the fact that isolating “the major issues of the case and simplify[ing] them into comprehensibility” takes really hard work and focused thought. I suspect this is part of it. I suspect the other part is related to the fact that there is big money in putting armies of lawyers on cases and multiplying paper. Cynical me!

Whatever the cause, the end result brings clients no closer to victory. So, even if you feel the need to burn everything to the ground in discovery, remember when it comes time to try the case to isolate the major issues and “simplify them into comprehensibility.”


Effective Use of Motions In Limine and Trial Briefs

jjhhfdI’ve written before about the wisdom, in the context of a jury trial, of obtaining pretrial orders by the judge excluding or significantly limiting certain items of evidence you anticipate will be offered by your opponent. The typical vehicle for obtaining this relief in American courts is by filing a motion in limine. This term is derived from Latin, and means “at the threshold.”

Why do courts entertain such motions? If one party attempts to introduce objectionable evidence, whether by an examination question or offering an exhibit, in front of the jury, it may be impossible to “unring the bell,” or make the event 100% harmless, for two reasons.

First, if the question or exhibit is damaging enough that the jury gets the gist of its import before the judge  sustains your objection, the practical effect is little different than if the evidence had come in without objection. (Worse, in some ways, if you recognize that the objection itself may “wake up” jurors and alert them that what they’re about to hear–or not hear–is important.)

The second, more subtle reason, which I’ve previously described, is the assumption on the part of jurors whenever they hear you object, particularly if it is sustained, that you are trying to hide something from them–probably the truth. As I’ve said, this can garner juror resentment.

Motions in limine are great fun to write if you are an associate. I say this only partly in jest because they actually can be both interesting and game-changing, if done well. Plus they help young lawyers learn to use and argue the rules of evidence in a way you never learn them in law school or when studying for the bar.

Now, if we take this kind of pretrial strategic thinking to a higher level, there are even more subtle considerations to consider and decisions to decide. One involves comparing a motion in limine with a different kind of document called a trial brief. A trial brief is often a concise memorandum of points and authorities that delineate an important narrow issue and identify and apply authorities to persuade (under the guise of education) the court to adopt your favored position. It is also common for parties to file a single trial brief, which provides the court with a roadmap of all of the issues, the expected evidence, and how they should be decided. I’m referring in this post to the kind of brief that addresses only a discrete issue or cluster of issues.

In general, motions in limine focus on evidentiary issues and trial briefs on issues of law, such as how the jury should ultimately be instructed. But the difference isn’t always clear. For example, if you expect a massive argument over a specific jury instruction, it might be appropriate to separately file a trial brief to persuade the judge that only your instruction is appropriate. But this debate can also give rise to evidentiary issues. If certain areas of inquiry would be irrelevant or inappropriate if the judge ultimately sides with the position in your trial brief, it may be wise to also file a motion in limine to urge the court to limit potential unwanted or damaging evidence.

Finally, the timing of trial briefs is another consideration. They can be filed before trial, along with any motions in limine, or you can prepare and hold–do not file–a “pocket” brief  until the issue is “ripe” for adjudication. When, in the context of an argument, the judge asks, “Counsel, do you have any authority on that?” “As a matter of fact,” you say, “we do!”

Three additional points about motions in limine. First, lawyers have greatly overused them; some judges consider such motions to be an irritant. Be wary of this and save them for issues that really merit advance consideration by the judge. Then brief these issues well–don’t just assume because you raise an issue and cite an evidence code section that you’ll prevail. It’s vastly better to select a very few key evidence issues and brief each thoroughly, than to file a motion on every anticipated shard of evidence. If the issue doesn’t merit serious briefing, it probably doesn’t merit a motion.

Second, it is an absolute waste of everybody’s time to file “obvious” motions, which simply repeat well-established evidence rules. For example, most trial judges and lawyers know about the prohibition of evidence of insurance coverage. Why waste paper and time making a motion on such an obvious point.

Third, most jurisdictions require parties to “meet and confer” before filing motions in limine to see if the issue can be resolved among the lawyers. Even if you are in a jurisdiction that does not have such a rule, there is no reason not to meet and confer and try to resolve the issue before you spend your client’s money needlessly.

Both motions in limine and trial briefs can significantly impact the outcome of a trial. By resolving evidentiary issues that the jury never needs to know about, or educating the judge about how she should rule on important legal issues, these documents can effectively shape how a case is tried. Don’t be afraid to use these tools, but use them wisely and strategically.


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