Attorney communication and impression making in the courtroom

This study investigated the effectiveness of attorney communication and impression making in the courtroom. Trained in-court observers rated attorney presentations for factual and legal informativeness, organization, articulateness, and rapport during the opening statement phase of 50 trials. After the trials, jurors were asked to evaluate the attorneys' overall articulateness. enthusiasm, and likableness during the trial. The attorneys were then questioned about their own performance on these indices. The results revealed that the opening statements of prosecuting attorneys were judged by observers as better organized and more factually and legally informative than defense attorneys. However, these variables were not related to trial outcome. Juror evaluations of prosecuting attorneys more closely agreed with these attorneys' self-perceptions of courtroom performance while defense attorneys rated themselves significantly more favorably than did jurors. More courtroom experience did not generally lead to better courtroom performance during opening statements for either prosecuting or defense attorneys, and often resulted in significant overestimations of general performance relative to juror evaluations, particularly among defense attorneys. System constraints operating in favor of prosecutors and performance feedback mechanisms available to prosecutors but not to defense attorneys are discussed. These mechanisms may account for the discrepancies between juror perceptions of attorneys and attorney self-perception.     

SEX AND HISTORY

California requires mediation of almost all child custody disputes. The effects of the variables of client and attorney gender, obtaining settlements, and prior mediation and litigation history were examined in a sample of 150 parents who completed surveys after mediating at the Los Angeles County Conciliation Court mediation service. Clients of female attorneys were more likely to respond negatively after failing to settle and were adversely affected by prior family law litigation. Female attorneys were more likely to treat fathers and mothers differently. Clients of male attorneys became negative after prior mediation but not litigation. Clients represented by attorneys of either sex found mediation procedures more helpful than did unrepresented parents. Having an opposite-sex attorney was correlated with communicating with the other parent. Both sexes expressed strong support for the mediation process regardless of whether they settled, although disputants who did settle reported a higher rate of satisfaction than did those who did not. Attorney support for the mediation was important to its success, and having opposite-sex attorneys may promote settlement.     

How Planned Is “Planned Litigation”?

Civil rights litigation undertaken by lawyers associated with interest groups, particularly the NAACP and the NAACP Legal Defense and Educational Fund (LDF), is of ten described as planned" litigation. This article examines litigation by these organizations from the late 1960s through the early 1980s to explore the extent to which "planned litigation" is planned. The author interviewed both staff attorneys for organizations participating in race relations litigation and "cooperating attorneys" associated with such organizations.
Elements of planned litigation discussed are litigating organizations' choices—of areas of law on which to focus, of cases, of federal or state courts, and of amicus curiae participation—and the dynamics of litigation—including relations between staff and cooperating attorneys, litigators' control of cases, and the effect of Supreme Court decisions on litigation strategy.
The interviews reveal that much interest-group civil rights litigation is not selected deductively on the basis of previously developed criteria but instead develops inductively from cases that come to the organizations and is affected by pressure and circumstance. Counter to the view, stemming from Brown v. Board of Education, that civil rights litigation is undertaken as planned "campaigns" based on "blueprints," it appears that much about "planned" litigation is problematic, with many constraints imposed by the actions of others and by resource problems, with the result that many deviations from litigation strategy occur. Thus much "planned" litigation b responsive and reflexive and beyond litigators' control.     

Plea bargaining and appraisals of eyewitness evidence by prosecutors and defense attorneys

A sample of defense attorneys and prosecutors from matched California counties participated in a two-part study. Study 1A reports the results of a survey regarding how influential each of the 17 eyewitness factors is in affecting the accuracy of real eyewitness identifications. Generally, both attorney groups considered all eyewitness factors to be influential; on only 6 of the 17 factors were defense attorneys more likely than prosecutors to provide higher importance ratings. In Study 1B, the attorneys answered questions regarding their willingness to plea bargain after reading each of four scenarios in which (1) same- versus cross-race identification and (2) whether the perpetrator was familiar were experimentally manipulated. Both eyewitness factors influenced plea bargaining decisions, and effects were generally consistent for both attorney groups. Results confirm that plea bargaining decisions at least by defense attorneys are made ‘in the shadow of the trial,’ and that appraisals of the strength of eyewitness evidence play a significant role in these decisions.     

The Relationship of Alternative Negligence Rules to Litigation Behavior and Tort Claim Disposition

Recently most states have abandoned the traditional tort defense of contributory negligence and substituted a form of comparative negligence. Using an extensive data set of auto accident injury claims, we provide evidence on the relationship between negligence rules and claimants' litigation decisions to retain attorneys, file lawsuits and litigate versus settle out of court. Litigation choices appear to be rational responses to the varying incentives created by alternative tort standards. We find that in contrast to comparative negligence, claims arising under comparative negligence are associated with greater probabilities of attorney involvement, higher average award levels, and longer delays in securing payment. Only 37% of claims involving attorneys in contributory negligence states result in a lawsuit being filed compared to 49% and 47% under the pure and modified forms of comparative negligence, respectively. The study provides the first statistical evidence on the litigation costs of the new forms of comparative negligence.     

The Institutional Sources of State Success in Federalism Litigation before the Supreme Court

The Supreme Court's recent federalism decisions are the clearest example of the states' improving legal fortunes in litigation against the federal government. Reducing the dramatic shift in the Court's federalism jurisprudence to the attitudinal voting of individual justices ignores the influence on the Court's decision making from broader institutional developments in American politics and domestic policy. These developments include: (1) the diminishing effectiveness of the states' lobbying power in the federal policymaking arena; (2) the increasing effectiveness of litigation by states' attorneys general in the federal judicial arena; and (3) the convergence of these developments resulting in a pro-state Supreme Court agenda.     

Insurance Should Be a Company's First Line of Defense Against the Wave of Public Nuisance Claims

When plaintiff attorneys and State Attorneys General obtained nearly half a trillion dollars in settlement asserting that tobacco companies had created a public nuisance, public nuisance became a popular new litigation weapon. For example, public nuisance claims have been brought against companies for their alleged contribution to global warming. Whatever the merit of such claims—indeed many public nuisance claims have been defeated—defendant companies should consider what insurance assets they have to aid their defense against even groundless nuisance claims, and, if necessary, to indemnify them against any judgment or settlement. It is helpful that courts nationwide favor liberal insurance language interpretations to protect insureds against, among other things, changes in tort law enlarging potential liability exposure.     

LEGAL AND JUDICIAL INTERPRETATION OF COMPETENCY TO STAND TRIAL STATUTES AND PROCEDURES

This study provides an analysis of the views of the legal community with respect to competency to stand trial statutes and procedures. Responses from North Carolina judges and defense attorneys reveal significant areas of disagreement or misunderstanding. While many judges believed that defense attorneys misunderstood or misused the competency procedures, the judges uniformly granted the motions. Defense attorneys indicated reasons for requesting competency evaluations that were frequently unrelated to concerns about competency. Hearings to determine competency were often not even held, and if a defendant was found to be incompetent. most judges believed that involuntary commitment to a mental institution should be automatic regardless of perceived dangerousness. The authors argue that these issues demand further attention and resolution to allow the competency laws to accomplish their intended goal without jeopardizing defendants’ rights.     

Litigation Public Relations: The Lawyers' Duty to Balance News Coverage of Their Clients

As the 20th century began its final decade, litigation public relations was more rigorously condemned than condoned. By the end of the decade, the proliferation of the practice and the failure of the bar and bench to forbid it had made the criticism virtually moot. This article considers whether there is a basis for making the right to practice litigation public relations an obligation to do so. The article concludes that the right properly belongs to clients and not their attorneys, and finds a basis in contract and malpractice law for requiring attorneys to tend to their clients' interests in the court of public opinion as zealously as they do in courts of law.     

Beliefs about child witnesses: A survey of professionals

This research addressed how professionals involved with the legal system evaluate children, primarily between 4 and 8 years old, as witnesses. In particular, we focused on professionals’ beliefs and opinions regarding children's memory, suggestibility, and behaviors as they relate to witness credibility. In addition, we surveyed professionals’ evaluations of investigative methods related to reliability. Four hundred and seventy-eight professionals working with children in the Norwegian legal system (i.e. judges, police detectives, psychologists, child psychiatrists, prosecutors, and defense attorneys) completed a questionnaire about child witness issues. Results indicated that psychiatrists as well as police officers expressed greater belief in children's capacities than did other groups, whereas defense attorneys and psychologists were more skeptical regarding children's general credibility. Psychiatrists and psychologists both, however, tended to favor, more than did legal professionals, the use of clinical techniques with children in abuse investigations. Implications are discussed in relation to professionals’ attitudes toward children as witnesses.     

What's Gender Got to Do with It? Incivility in the Federal Courts

The current study examines experiences of interpersonal mistreatment in federal litigation among a random sample of 4,608 practicing attorneys. Using both quantitative and qualitative survey data, we documented the nature and interplay of general incivility, gender-related incivility, and unwanted sexual attention. Nearly 75% of female attorneys had experienced some form of this misconduct in the previous five years, compared to half of male attorneys. An in-depth examination of instigators revealed that not only fellow attorneys but also federal judges, court personnel, marshals, and court security officers instigated the inappropriate behavior. We further found that most attorneys responded to this mistreatment with avoidance and denial; few used or trusted existing reporting mechanisms. The current study surpassed simple prevalence estimates to document effects of interpersonal mistreatment on the professional well-being of targeted attorneys. We discuss implications of these results, drawing on theories of social dominance, sex-role spillover, cognitive stress, organizations, and intervention.     

Defense Attorney Plea Recommendations and Client Race: Does Zealous Representation Apply Equally to All?

Research on racism in the criminal justice system generally focuses on the role of the jury; yet, the vast majority of convictions are obtained through plea bargains. This research addresses the role of the defense attorney and proposes that disparities in sentence length and incarceration rates between African Americans and Caucasian Americans are in part due to the plea bargains that defense attorneys recommend these clients accept. Using practicing defense attorneys from around the country, findings indicate that the pleas attorneys felt they could obtain with a minority client contained higher sentences (adjusted M = 2.88) than those they felt they could obtain with a Caucasian client (adjusted M = 2.22) and were significantly more likely to include some jail time. Reasons for the disparate recommendations were not due to increased perceptions of guilt with the minority client nor to perceptions that the minority client would fare worse at trial. Theoretical and practical implications are discussed as well as possible future directions.     

Beliefs about secondary confession evidence: a survey of laypeople and defense attorneys

We surveyed students, community members, and defense attorneys regarding beliefs about secondary confession evidence (i.e. when a third party tells authorities that a person has confessed to him or her) from jailhouse informants and other sources. Results indicated that laypeople perceive secondary confessions as less credible than other types of evidence (e.g. forensics, DNA, eyewitness testimony), and they are knowledgeable about factors that may influence the veracity of secondary confessions, such as incentives or previous testimony. However, they underestimated or were uncertain about how persuasive secondary confessions would be to themselves or other jurors. Compared to laypeople, defense attorneys were more sensitive about issues affecting the reliability of secondary confessions.     

State Solicitors General,Appellate Expertise,and State Success Before the U.S. Supreme Court

This article examines how institutional design leads state governments to win their cases before the U.S. Supreme Court. We analyze whether states are more likely to prevail on the merits when they create a formal solicitor general office and have an attorney from that office argue their cases before the Court. We employ an analytical matching approach and find that attorneys from state solicitor general offices are significantly more likely to win their cases compared to other kinds of state attorneys. Accordingly, if states prioritize victory before the Court, they should consider creating state solicitor general offices and granting those solicitors general the authority to control their appellate litigation.     

Stag Hunting with the State AG: Anti-Tobacco Litigation and the Emergence of Cooperation Among State Attorneys General

Employing a critical-mass theory of collective action, this article models the emergence of cooperation among state attorneys general in litigation against the tobacco industry. These suits were not independent events, nor was cooperation based on prior agreement among the attorneys general. Rather, cooperation emerged over time as a result of interdependent decision-making, with early lawsuits increasing the likelihood of later suits. The model emphasizes the "production function" of the collective good and the heterogeneity of the attorneys general and their political environments as keys to the development of cooperation. The model is tested against data using event history analysis.     

Elements of the Defense Attorney's Craft: An Adaptive Expectations Model of the Preliminary Hearing Decision

The way criminal defense attorneys handle cases prior to final disposition is a subject that has gone largely unexplored by researchers. This study focuses on the decisions of attorneys to waive preliminary examinations in nine felony courts. Employing both interviews and case-level data, analysis of this decision emphasizes the adaptive behavior of attorneys to local court policies, client concerns, tactical issues, and time pressures. Underlying the specific rules of choice guiding this decision are more fundamental concerns of attorneys regarding efficiency, professionalism, and the minimization of later regrets associated with waiving preliminary hearings.     

ENSURING AUTHENTIC YOUTH PARTICIPATION IN DELINQUENCY CASES: CREATING A PARADIGM FOR SPECIALIZED JUVENILE DEFENSE PRACTICE

In delinquency courts, juvenile defense attorneys are essential for guaranteeing children's due process rights and encouraging their meaningful participation in the proceedings. Yet, indigent defense delivery systems are largely failing youth accused of committing crimes. This article highlights the importance of developing systems that support the highly specialized practice area of juvenile defense. To protect their clients’ rights and meet their ethical obligations, juvenile defense attorneys must zealously advocate for their clients’ expressed interests and must strategically address the biases and misunderstandings prevalent in delinquency courts. Specifically, defense attorneys must vigorously challenge systemic race, class, and gender injustices; incorporate expert knowledge of youth development into their advocacy; and protect clients’ mental health and educational interests. Such holistic representation promotes rehabilitation and reduces recidivism. Because of numerous obstacles that currently impede defense attorneys from engaging in such exemplary practice, systemic reforms are necessary to support high‐quality defense representation and, ultimately, ensure that youths’ rights are protected.     

我国死刑复核程序之完善刍议

死刑复核程序是为了保障死刑案件质量而设置的特别审判程序,具有鲜明的中国特色。为最大化发挥死刑复核程序的公正司法、防错纠错、保障人权的功能,贯彻落实"保留死刑,严格控制和慎用死刑"的死刑政策,死刑复核程序应当着力加以完善:第一,厘定死刑复核程序的审判性质,选择在现有框架内实现死刑复核程序诉讼化改革的路径,而不必进行三审制转变;第二,加快将法律援助辩护全覆盖至死刑复核程序,充分保障死刑被告人的辩护权;第三,坚持死刑案件在基本事实的证明上达到"唯一性"结论;第四,扩大最高人民法院对死刑复核案件的改判范围,实现公正与效率价值的合理平衡。     

Interest-based mediation of medical malpractice lawsuits: a route to improved patient safety?

Mediation of medical malpractice lawsuits provides savings for the parties by shortening the litigation process. In theory, information that aids emotional healing and improves patient care can also surface through mediation. The study discussed in this article used structured interviews of participants and mediators in thirty-one mediated malpractice lawsuits involving eleven nonprofit hospitals. The study measured perceptions of the process and mediation's effects on settlement, expenses, apology, satisfaction, and information exchange. Defense lawyers were less likely than plaintiff attorneys to mediate. Both plaintiff and defense attorneys were satisfied with the process, as were plaintiffs, hospital representatives, and insurers. Changes in hospitals' practices or policies to improve patient safety were identified. This study demonstrates that major challenges stand in the way of achieving mediation's full benefits. Absence of physician participation minimizes the chances that mediated discussion of adverse events and medical errors can lead to improved quality of care. Change will require medical leaders, hospital administrators, and malpractice insurers to temper their suspicion of the tort system sufficiently to approach medical errors and adverse events as learning opportunities, and to retain lawyers who embrace mediation as an opportunity to solve problems, show compassion, and improve care.     

The effects of attorney presentation style,attorney gender,and juror gender on juror decisions

Extralegal characteristics of attorneys may play a significant role in the decision-making behavior of jurors. Presentation style, for example, is one factor to which trial lawyers pay a great deal of attention. However, a given style of speech may not be perceived equivalently when used by different speakers. The present study examined the effects of the defense attorney's presentation style and gender, and juror gender on jurors' verdicts and evaluation of the attorney and witness. Undergraduate college students read a brief summary of an assault-and-robbery case, viewed a videotape of either a passive or aggressive male or female attorney interrogating a witness, then rendered a verdict and rated the witness and attorney on characteristics such as competency, credibility, and assertiveness. The results indicated that, overall, aggressive attorneys were more successful at obtaining an acquittal for their clients than passive attorneys, and that male attorneys were more successful than female attorneys; presentation style also interacted with gender of attorney and juror. Some possible mechanisms for these effects are discussed.