Whether we are talking about Minnesota or Greenland, or a score of other contested narratives within the field of political conflict, the role of a person’s ideological and partisan leaning has probably never been more...more
When it comes to persuasive courtroom communication, there is a three-word piece of advice that is drilled into the marrow of every experienced litigator: Tell a story! Trial lawyers don’t go far without internalizing that...more
The courtroom had all the usual elements: oak paneling, parties, a judge, a jury box, a flag. Only in the jury box, instead of live human jurors, there were three large digital monitors on which appeared the “jurors” for this...more
Supporters of America’s traditional jury trials like the idea of a system of conflict resolution based on evidence, reasoning, and the public’s judgment. Those supporters, and I include myself in that group, believe that...more
As counsel scans the panel of potential jurors, one might stand out based on the gut level thought: a “that guy just makes me nervous” kind of reaction. Basing your strike decisions on a “bad feeling” that lies outside of...more
How effectively does counsel and the court question potential jurors as part of the selection process? New research in the journal Language in Society (Clayman & Fox, 2025) provides some additional perspective on that...more
Civil cases generally involve a mix of individuals and corporations. While the government can be a party, more often state or federal officials are playing an off-stage role in setting a regulatory standard that was either...more
It’s a familiar scenario: As the case moves toward the mediation stage, the two sides start staking out positions with an eye toward compromise. The plaintiffs make a big ask with the expectation of coming down. The defense...more
9/5/2025
/ Best Practices ,
Defense Strategies ,
Dispute Resolution ,
Litigation Strategies ,
Mediation ,
Mediators ,
Mock Trials ,
Negotiations ,
Settlement ,
Settlement Agreements ,
Settlement Negotiations ,
Trial Preparation
There is a well-known principle in communication circles, first expressed by cognitive scientist George Lakoff: “When we negate a frame, we evoke the frame.” It means that even when we try to deny a specific attack against...more
Testifying, whether in a deposition or in trial, can feel pretty threatening. Particularly if you’re a named defendant in a lawsuit, you know you’re going to be the target. But even when you’re on the other side, or you’re an...more
In modern times at least, corporations have not been terribly popular. However, since the murder of UnitedHealthcare’s CEO about a half a year ago in New York City, observers and the corporations themselves have been paying...more
I’m old enough to feel okay claiming full “curmudgeon” status when it comes to A.I. as a writing tool. I know some will say that puts me behind the times, and others will say that I’m missing out on opportunities. But the...more
6/30/2025
/ AI Act ,
Algorithms ,
Artificial Intelligence ,
Authorship ,
Bias ,
Content Strategy ,
Copyright ,
Innovation ,
Legal Technology ,
Legal Writing ,
Machine Learning ,
Professional Development ,
Technology ,
Young Lawyers
Cause challenges play an important role in jury selection. When a potential juror has an acknowledged barrier to basing their decision on a neutral understanding of the evidence and the law, they should not serve. However,...more
Will the individuals who serve on your jury be the same people they were before they were called for service and selected? Will they have the same mental habits and preferences they exhibit in their civilian lives outside the...more
America’s civil litigation system can sometimes look a little like class warfare. On one side — often, but not always the defense — there will be an organization and a group of individuals who enjoy substantially more wealth...more
These are trying times for those of us who are looking to see whether American rule of law can survive its current challenges. As our executive branch tests the limits of Congressional authority, and bucks the traditions of...more
As a witness prepares to testify in trial, the big fear is often cross-examination. While the direct questioning by the witness’s own attorney is seen as the “easy part” (friendly, open-ended questions that allow you to “tell...more
We live in uncertain times, and that is becoming a more obvious observation by the day. From the turmoil in the financial markets to the tumult in the marketplaces of ideas, there is a widely felt lack of security,...more
A couple of weeks ago, I was in court to help pick a jury in a high-value case. During that early phase of jury selection, the gallery was full to capacity with potential jurors, the counsel and parties were present, the...more
Everyone who works with our court systems, including those who work in civil litigation, are invested in the idea of rule of law. Whether our case has to do with governmental powers or not, whether it involves civil rights or...more
It is common advice for witnesses in the courtroom or representatives at counsel table: keep a poker face. That advice — avoid scowls, grimaces, and other head-shaking reactions while you’re being observed by a jury — has...more
Something that we see over and over again in mock trials has now occurred in an actual trial. A recent jury in Allegheny County, Pennsylvania entered a defense verdict in favor of Johnson & Johnson, answering “No” to the...more
Government regulators can often play a role in civil litigation. In some cases, they’re involved as parties. More often, however, their role is as a proxy. In those situations, jurors might look at whether the defendant...more
There is a case currently playing out in the Southern District of New York, Major League Baseball Players Inc.,v. Underdog Sports, Inc. There is a common dynamic called out right there in the caption: One side is the “Major...more
Early on in the jury selection process, the judge will often ask the panel, “We all know that jury duty can be inconvenient, but who believes they would experience an unreasonable hardship by serving in this case?” Hands will...more