The Jury Expert is the sort of publication that induces despair in right-thinking citizens, not because it isn't worth reading, because it is, but because it's a window onto how much justice depends not on the cold, hard facts but on the style of the presentation of those facts to 12 human beings in a box. It's by the American Society of Trial Consultants, "the only professional organization specifically created for trial consultants, jury consultants and litigation consultants."
Some articles in the latest issue:
- "What We Do (and Don't) Know about Race and Jurors"
- Persuading with Probability: The Prosecution of O.J. Simpson
- Tattoos, Tolerance, Technology, and TMI: Welcome to the land of the Millennials (aka Generation Y)
- The Convoluted Spectrum of White Guilt Reactions: A Review of Emerging Literature
- Presumed Prejudice, Actual Prejudice, No Prejudice: Skilling v. U.S.
- Emotions in the courtroom: "Need for affect" in juror decision-making
4 comments:
Thanks for reading The Jury Expert! We work hard on it and love it when others notice.
I want to simply comment on your idea that our publication should induce despair. That is certainly not the intent! You could just as easily say that it induces hope for justice in that people are looking analytically at how to tell a story in a way that helps jurors hear it so that justice can be done.
There are lots of examples of how messages are distorted, twisted, confused, or turned on their heads in the media. The same thing happens when you have a random group of twelve hearing your story. What we do is focus on how facts get misheard or misinterpreted when stories are NOT told effectively, so that attorneys can tell their story in a way that is clear, matter of fact and persuasive.
If you read our articles through that lens--you'll see our goals of translating research into effective practice and improving litigation advocacy. For me, that promotes hope for justice--not despair over the lack thereof.
Rita Handrich, Editor
The Jury Expert
The premise underlying your despairing verdict on The Jury Expert is that our justice system is supposed to rely on just the "cold, hard facts" and not on "style and presentation." It is a point well taken, and a point that I'd say all members of The American Society of Trial Consultants would agree with, that the spin should never be more important than the evidence itself. At the same time, however, it simply isn't true that our method of justice was ever intended to be blind to style and presentation.
What we have in the U.S. is called an "adversary system." What that means is that instead of having one single truth-seeker (like the judges empowered to conduct their own investigations in some European systems), we have two sides that are each entrusted to put their best case forward. An adversary system is based on the view that if both sides try their damnest with the evidence that is available, then more often than not, the truth wins out. Not every time, but more often than not, and I'd argue, more often than with any other way of doing it.
So if our system expects that both sides are trying their damnest with the evidence available, that means not just reporting the evidence and hoping it speaks for itself, it means making a case. It means framing the evidence in a structure and theme that fact-finders will understand and respond to. It means assessing the message to see what works and what doesn't. It means paying attention to the potential fact finders so you use the checks the system allows (peremptory challenges) to ferret out bias. It means meeting with witnesses to make sure that they are ready to give the fact-finders what they need in a way that is clear and coherent.
What trial consultants and like-minded attorneys are doing is not some fancy new perversion of the legal process, it is nothing more than adopting a message to an audience, and that is what the system expects, and is something that goes back as far as Aristotle at least.
@Rita R. Handrich
@Ken Broda-Bahm
My tongue was partly -- partly -- in cheek when I wrote that. I know the issue is far more complicated. And I don't think trial consultants are a "perversion of the legal process" -- at least not any more so than this blog is a perversion of journalism.
Hi Mark--
Prior to commenting, I went through a number of your posts and could see that you are very aware of nuances in communication. I wanted to correct the impression that we were somehow a bad thing--we try hard to be a good thing.
We're proud of our history in the civil rights and civil disobedience movements and many of us work in the current day to make our system more fair, more just and more better. I hope your readers will visit us and draw their own conclusions as to our merit and role in today's court system.
And thanks for saying we're worth reading! :) I whole-heartedly concur.
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