What Kahneman Means for Lawyers: Some Reflections on Thinking, Fast and Slow

Written for economists, the classic THINKING FAST AND SLOW by Daniel Kahnemann should be recommended reading for lawyers.  Until advocates in and out of the courtroom understand thinking/decision-making processes, in particular what Kahnemann dubs “thinking fast” and “thinking slow,” they cannot expect to convince decision makers to think their way. Although several years old, this

PRACTICE POINTS: TWO DEMONSTRATIVES TO INCORPORATE INTO YOUR NEXT CASE

It is beyond question that jurors expect, and advocates need to offer, some visual information – and, indeed, some electronic visual information – during a trial.  Visuals increase attention and retention when done properly, and they certain reduce boredom. In this succinct two-page reminder of these principles, litigation consultant Josh Dubin summarizes some of the

Certainty and Uncertainty in Reporting Fingerprint Evidence

Words count.  And when forensic discipline experts discuss a ‘match,’ a correspondence between crime scene evidence, words have particular impact.  Words count so much that when experts use scientifically-indefensible terms or descriptions, such as “and no one else in the world has the same print,” the weight given to such proof is high.  It is

One step forward and two steps back? The ′20 Principles′ for questioning vulnerable witnesses and the lack of an evidence-based approach

In England and Wales, particular attention has been devoted to the presentation and questioning of vulnerable witnesses, usually children.  This led to the development of “The 20 Principles of Questioning,” a protocol for preparing and examining such witnesses. This article assesses the 20 principles to show which are supported by science, which have inadequate research

TAILORED JURY INSTRUCTIONS: WRITING INSTRUCTIONS THAT MATCH A SPECIFIC JURY’S READING LEVEL

Jury instructions are core to the assessment of a case – although they are boring and often difficult for the lay audience (or even many layers) to understand.  Across the board, there has been inadequate work done to ensure comprehensibility. This article approaches the problem from the starting point of average reading levels in the

MEDIATING IN THE RED ZONE — AN ADVOCATE’S CHECKLIST

What does it take to resolve a case successfully in a mediation process?  This how-to article, from this Utah attorney who has both advocated in mediation proceedings and served as a mediator and arbitrator, is a common sense guide to lawyers whose cases will proceed via alternative dispute resolution.  With the touchstones of flexibility and

ADOPTED STATEMENTS IN THE DIGITAL AGE: HEARSAY RESPONSES TO SOCIAL MEDIA “LIKES”

What is a “like” in the world of social media?  For Evidence law purposes, does “like” equal “approve” or “I agree?”  And what does it matter?  Because if “like” translates into approval, it becomes an adoption of the original message by the “liker.”  And if that person is ever the party to litigation, does this

“That’s How She Talks”: Animating Text Message Evidence in the Sexual Assault

Text messages are often more accurate in detailing a chain of events than a witness’ post-occurrence memory and time-of-trial reconstruction of the incident(s).  Yet text messages are not neutral; they may be subject to manipulation or alternative interpretations depending on how they are displayed and “animated,” i.e., brought to life. This capacity to give different

REPORT: WRITING IT RIGHT: TIPS ABOUT WRITTEN ADVOCACY FROM THE NORTH DAKOTA SUPREME COURT

The five-justice North Dakota Supreme Court has posted on its website a 10-page collection of “Appellate Practice Tips.”  University of Missouri Law Professor Douglas Abrams, author of EFFECTIVE LEGAL WRITING: A GUIDE FOR STUDENTS AND PRACTITIONERS (West Academic Publishing 2016),  identifies and expands upon each of the tips.  As with Irving Younger’s “Ten Commandments of

APPLYING EMPIRICAL PSYCHOLOGY TO INFORM COURTROOM ADJUDICATION — POTENTIAL CONTRIBUTIONS AND CHALLENGES

Do judges change their rulings on motions to suppress depending not on the law but on the biasing effects of how terrible the crime is and how pivotal the evidence will prove to be?  Do juror biases affect how they analyze legal concepts such as the “substantial step” element of attempt? The answer to each