Truth, Lies and Focus Groups

I start trial in about ten days. The facts are gruesome. A mother driving home with her three young children is involved in a head-on collision with another car. Two of the mother's children are killed on impact; she and the surviving child are seriously injured. The driver and passenger of the the other vehicle suffer moderate injuries.

An ambulance driver smells alcohol at the scene. "Have you had anything to drink?' "Plenty," my client responds. A blood alcohol test at the hospital yields a result over the legal limit. And witnesses to the crash say she drove erratically. The point of impact between the two cars is jury over the dividing line, and not in my client's favor. These are the bad facts.

My client had one beer at a family picnic five hours before the crash: More than a dozen witnesses at the picnic will so testify. She has no recall of saying anything to the ambulance driver. The crash took place when it was dark and in a driving rain. The road merged into two lanes just before the crash location. And, hospital records reflect that the blood tests were not for "legal use." Indeed, the operating manuals for the testing device require confirming tests by other means. No tests were done.

The state wants her to do prison time, and plead to a felony. That strikes me as obscene. Her daughter needs her. The woman is no killer. At her worst, she made a mistake. She is attractive, articulate, and in all respects an ideal witness.

We've tried to negotiate for more than a year, but now lines are drawn.

We're not using a jury consultant in the case. I've never used one. I wonder about lawyers who do. Jury selection really comes down to one thing and one thing only: bounce. We all know what that is. You walk into a room full of strangers and mingle. In some cases, there is no connection with the stranger at your elbow. That is called a peremptory challenge. Some folks rub you the wrong way for reasons you can identify and put into words. Those are challenges for cause. And then there are folks who will listen, and who seem to give a little of themselves in response to your disclosures: Those are jurors.

We will use a focus group in this case, however. In a focus group, randomly suggested strangers are presented with various themes and elements of a case. Then you watch how they react. What metaphors come to the minds of people who have no lived with a case for months? What themes press hot buttons you missed? There is some value to this. (The impressions collected at such sessions are work product.)

As I prepare for a focus group this morning, I came across the following site: I recommend it as a means of quickly cataloging the rhetorical devices used on television. My wife and I rarely watch television, and I wonder whether that makes me a less effective lawyer. It is a ready lexicon of terms and tropes.

The only thing we do watch is college football. In the ads during the season's final games, I noticed an advertisement for a show about a fellow who can tell you are lying merely by watching your body language. (Lie to Me, on Fox, starting January 21) I shuddered when I saw this. Will it be the new CSI-effect? Every juror now an expert on truth?

Perhaps it is time to make more time in the day and get the education my jurors are receiving each night.


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