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Book review: 'The Science of Attorney Advocacy'

Rodney Nordstrom
November 21, 2012
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nordstromcover1123-1col.jpgUnlike other books I have recently reviewed, the book “The Science of Attorney Advocacy targets a different type of reader. If you are a curious law student or devoted trial consultant wanting to know more about trial advocacy and how it interfaces with social science research, this book will interest you. If you are a trial lawyer or professor and want a quick overview of courtroom and trial psychology protocol, this is a readable introductory.

The book has six chapters plus an introduction covering a wide range of secondary topics: attorney demeanor, verbal communication, paralinguistics (study of pitch, volume and intonation), kinesic communications (study of body movement, gestures and facial expressions), attorney-client relationships and attorney storytelling. It consists of 298 pages and costs around $50.

Each chapter examines relevant research literature to see what commonly held beliefs are actually supported and which ones are not. This overview is then followed by recommendations and conclusions. Each chapter is like a sprint through the mountains of social science research literature underlying much of what we know or believe about the role of the various facets of courtroom persuasion. For example, the chapter on attorney demeanor analyzes likability, honesty, fairness and credibility and the likely effect these have on a juror. The authors then examine the social science research to see what part of trial advocacy is supported or not supported by the literature. Each chapter subtopic is kind of like a “MythBusters” for the trial attorney.

No book is perfect; all have some weakness. I was disappointed that most of the cited research was relatively old by research standards. Old doesn’t mean bad, just potentially outdated. Although the reference section boasts an impressive 900-plus citations, most of the cited sources are pre-2005. There has been a huge amount of research published since 2005 that could easily have been cited. There are a few reference throw-ins after 2005, as if more recent pieces were tossed in to make the book seem more comprehensive than it actually is. The most glaring absences in this reference section are the ubiquitous “Reptile by David Ball and Don Keenan and “Rules of the Road by Rick Friedman.

Authors Jessica Finley and Bruce Sales, each with J.D. and Ph.D. degrees, present an even balance of the released research findings and adopt a “just the facts ma’am” approach. In the end, the reader is left a little overwhelmed because of the point/counterpoint style of the research findings. It should not surprise the reader that not all trial-related research yields consistent black and white results.

What the reader will not find are sweeping revelations, conclusions or insights. There are no easy answers telling the trial lawyer what he should do to maximize effectiveness with jurors. In fact, the book shows trial effectiveness depends on many complex human and situational factors. While Findley and Sales have done a terrific job of summarizing the classic social science research studies up through 2005, the topics remain perplexing to the advocate trying to make sense of it all. This book, indirectly, highlights the limitations that can be made about human perception and decision making. In the end, jury selection remains largely an enigma.•

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Rodney Nordstrom Ph.D., J.D., is a trial consultant with his company Litigation Simulation Services (www.litsim.com) located in Peoria, Ill. The opinions expressed in this column are those of the author.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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