May 2011

Jury Consultants post – Rajaratnam: Are They Worth It?

May 26, 2011

I was interested to read the The Wall Street Journal’s report that Raj Rajaratnam spent $300,000 on jury consultants before the trial in which he was convicted on all 14 counts of securities law violations.  As my teenage daughter might say, “fail”! OK, I admit that I’m being a bit unfair.  From everything I read in the press regarding this trial it would have been astounding if Mr. Rajaratnam had been acquitted. After all, the government had something quite rare in insider trading cases: audiotapes of the defendant, convicting him with his own words.  A jury consultant “fantasy team” comprised of Sigmund Freud and a certified psychic probably wouldn’t have been able to help in this case. Nevertheless, it’s no great surprise that Raj’s attorneys chose to use jury consultants in this case.  $300,000 was a drop in the bucket given the “spare no expense” approach taken by defense counsel in this case.  Mr. Rajaratnam”s lawyers undoubtedly concluded that jury consultants might help, and couldn’t hurt.  The decision to utilize jury consultants probably was a prudent step in minimizing future regret.  (“If only we had used a jury consultant our client might not have been convicted! Darn.”). Trial lawyers have long been deeply divided on the question of whether jury consultants are “worth it.” Some of the consultants’ recommendations in this case  (as reported in the WSJ), are so obvious that it…

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How to (or Not to) Write for the Supreme Court

May 20, 2011

“I’m sorry this letter is so long, I didn’t have time to make it shorter.” — George Bernard Shaw Non-lawyers see lawyers arguing before judges on television and in the movies, and they get the mistaken impression that oral argument is the heart and soul of lawyering.  In fact, it’s not.  Most judges based their decision on a careful reading of the legal briefs submitted to them.  That’s particularly true of the Supreme Court, where each side to a case may spend hundreds or thousands of hours preparing their written briefs, and get all of 30 minutes per side for oral argument.  This wasn’t always the case – until the mid-1800’s the time for argument was unrestricted, and could go for days.  In 1849 the time per side was limited to two hours.  This was reduced to one hour in 1925, and 30 minutes in 1970.  And, as Justice Alito recently noted, half of the words spoken during those 30 minutes are spoken by the Justices themselves, while questioning the lawyers.

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Trial Practice: If You Can’t Fix It, Feature It (or at least mention it before the other side does)

May 14, 2011

One of the oldest, most hoary rules of the trial practice is this: if you have a bad fact, reveal it to the jury before your opponent does.  Otherwise, the theory goes, the jury (or judge) will think you are trying to hide it from them, and will count it against you. Worst case, you will lose credibility as an advocate – if this lawyer will try to hide a significant fact from me this time, what else is he or she hiding?  Why should I trust this attorney? Disclosing the bad fact is OK, but even better, figure out some way to turn the “bad” fact to your advantage – “if you can’t fix it, feature it.”  For example, “my client was convicted of criminal fraud ten years ago.  We want you to know about this, jurors, and to know that he has paid his price to society, and been free of any allegations of wrong doing since.  Since then he has married, he is the father of triplets, and he hasn’t gotten into trouble since.  We all make mistakes – don’t hold this one against him.”

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