Appendix: Application of the Science to Trial Advocacy

• Jurisdiction: United States

Appendix: Application of the Science to Trial Advocacy

Throughout this book, after discussion of various aspects of persuasion science, there were examples of how it can be applied in actual trial advocacy. Those examples are collected here for ease of access.

Jury Selection

Devil's Advocate (Chapter 11)

What would be your response if the defense lawyer asked you . . .

• In a trip-and-fall case: "Sure, there's a defect in the sidewalk, but why isn't it all the pedestrian's fault if she trips?"
• In a malpractice case: "The doctor spent years in medical school and training; it's not believable that he'd do something wrong, is it?"
• In an auto collision case: "So, the driver hit the bicyclist when she was answering a phone call. Lots of people talk on the phone while driving. Why should a person be held responsible for that?"

• In a misrepresentation case: "If a person is gullible enough to believe an untrue statement, why should the liar have to pay him back?"
• Pain and suffering damages: "If someone loses their arm due to negligence, you can't give them their arm back. So what good is money?"

Opening Statement

Maintaining Attention (Chapter 7)

When he pushes open the door of the nursing home, he smells the acrid odor that bleach never quite covers up. He hears moaning coming from his grandmother's room. When he walks in, he sees her lying on the floor in a pool of blood. He kneels down and hears her say . . .

Questions (Chapter 7)

The rule for surgeons at the end of an operation is that before you sew the patient back up, you have to make sure that all the sponges, needles, and instruments are accounted for. What might happen if the rule isn't followed?

What the Evidence Won't Be (Chapter 11)

• Our expert, Dr. Smith, will not testify that the standard of care is to leave scissors inside the body of his patient; he will testify that the surgeon must not close the patient before all surgical instruments are accounted for.
• The evidence will not establish that this corporation was unaware of the harmful potential of their product; the evidence will show that the people running this corporation knew their product would harm people.

Plaintiff Direct Examination

Outline Before Details (Chapter 16)

Q: Before the crash, what was your employment?

A: I was the executive director of the City Charity Association.

Q: Generally, and we'll get into detail shortly, what were your responsibilities?

A: I supervised nine employees and made sure that school kids had books, no matter what their circumstances.

Q: Were you able to keep doing that job after the crash?

A: No. I was replaced because the organization needed someone to help the kids, and I was in the hospital and then months in a skilled nursing facility.

Believability (Chapter 16)

Q. Do you think that you will never be able to work and earn a living again?

A. That's what I'm being told, but I refuse to believe it. There must be something that I will be able to do. Somehow, I'm going to try to earn something even if it's not what I was able to before I was hurt.

Q. You don't want to be compensated for being totally disabled?

A. I only want what's fair. And if I can do some work, it's only fair that I'm compensated for what I can't do anymore.

Q. Do you think that you were completely without fault in being injured?

A. Maybe there was some way that I could have been a little bit more careful.

Expert Direct Examination (Chapter 9)

Building Credibility (Medical Malpractice)

• Are you knowledgeable about heart surgery on children?
• What position do you hold where you use that knowledge?
• How many heart surgeries on children do you perform each year?
• Do you perform surgeries that are the same as the one the plaintiff underwent?
• How many such surgeries have you performed?
• Are you

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